When someone mentions the phrase "Internet Service Provider" or the term "ISP," Internet powerhouses such as, America Online, MSN, Earthlink and AT&T immediately come to mind. However, recent federal legislation in the copyright arena changes the traditional concept of an ISP to now include businesses, law firms and universities.
Why is being categorized as an ISP important? It is no mystery that the advent of the Internet has made it easier for artists, authors, publishers and educators to practice and market their trade. However, this same technology has also made it easier for unscrupulous individuals to capitalize on other’s work by copying and instantaneously distributing unauthorized material throughout the world. Copyright infringement on the Internet is rampant. A common example of copyright infringement is downloading unlicensed copyrighted music and video.
In most cases of copyright infringement perpetrated over the Internet, the actual (or direct) infringer is not easy to find and, more often than not, does not have the resources to pay any damages caused by his or her infringement. On the other hand, identifying the ISP (the entity which provides the means to infringe because it owns the computers and the cable) is relatively simple. Additionally, the ISP usually has the resources to pay any damages caused by the infringing activities. Accordingly, copyright owners have attempted to hold ISPs accountable for damages for copyright infringement arising out of the conduct of their users.
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On October, 28 1998, the Digital Millennium Copyright Act ("DMCA") became law. A portion of this new law, known as the Online Copyright Infringement Liability Limitation Act, clarifies an ISP’s liability for acts of copyright infringement perpetrated by its users and creates a safe harbor for those ISPs who choose to comply with the DMCA’s formal requirements. Specifically, this section of the DMCA eliminates an ISP’s monetary liability and limits the type of injunctive relief available for acts of copyright infringement.
In a remedial attempt to hold those who provide access to the Internet accountable for the acts of those to whom they provide access, the DMCA adopts a broad definition of an ISP. Under the DMCA, a "Service Provider" includes "any provider of online services or network access, or the operator of facilities therefore." Taken literally, this definition means that any company or university that provides its employees or students with Internet access is an ISP.
The DMCA only shelters an ISP from liability arising out of a subscriber’s conduct if the ISP meets certain requirements. In order to qualify for the safe harbor under the DMCA, an ISP must first designate an agent for receiving notice of alleged copyright infringement and file a form identifying the agent with the U.S. Copyright Office. If you are an ISP, should you comply with the DMCA safe harbor provisions? While theoretically it seems prudent for all companies, universities or other entities that provide Internet access to their employees or students to comply with the provisions of the DMCA, logistically, compliance may not be possible. As stated above, the DMCA requires an ISP who is put on notice of an infringement, to take down or block access to the allegedly infringing material such as music files and video. Many companies, however, do not have the technology to identify the person who may have downloaded copyrighted music or who may have posted infringing material on a Web site or message board. Even if the employee can be identified, short of unplugging the employee’s computer, most employers do not have the technological means to take down or block access to the allegedly infringing material. For example, blocking only certain files, like Napster, is often impossible without blocking all Internet access, which may be required for conducting legitimate business. Furthermore, Web sites like Gnutella, another system for music file sswapping, arguably provide non-infringing and useful services, in addition to allegedly infringing ones. As such, the ISP "you" must wrestle with difficult legal issues like free speech and fair use. In some instances, it appears that the only way to avoid liability and obtain the DMCA safe harbor protections is outright censorship by employers.
Another problem with complying with the safe harbor requirements of the DMCA is determining whether notice of an alleged infringement is sufficient or legitimate. The DMCA provides that notice of an alleged infringement must meet certain requirements. As there is no prescribed form of notice, it is often difficult to evaluate whether or not the notice satisfies the DMCA and therefore triggers an ISP’s duty to remove or block access to the allegedly infringing material.
Despite the foregoing, an ISP’s liability for copyright infringement is by no means clear. Most businesses that fall under the DMCA’s definition of an ISP merely provide its customers, employees or students access to the Internet. In this situation, the ISP is a passive carrier, like a telecommunication company, and therefore, may not be liable for copyright infringement under any theory of law. An ISP that does not comply with the requirements of the DMCA may still seek to establish that it is not liable for copyright infringement under traditional copyright law.
Amy B. Spagnole is an associate in the law firm of Hinckley, Allen & Snyder LLP and her practice concentrates in the area of intellectual property law and litigation.
