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Seeking safe harbor: ISPs and the copyright law.

The 1998 Digital Millennium Copyright Act (DMCA) provides Internet service providers (ISPs) with powerful tools to protect themselves against claims of copyright infringement. These tools are known as the DMCA "safe harbor" provisions.


However, these provisions do not apply automatically. Rather, ISPs must take certain actions and comply with certain conditions before they may avail themselves of the DMCA safe harbor protcctions. This article will provide general information about copyright law and illustrate steps ISPs can take to comply with the DMCA so that their activities may fall within the protection of the act.

What does copyright protect?

To understand what the DMCA is designed to do, it first is necessary to understand what copyright law protects and how the rights of copyright owners are infringed. Copyright law protects original works of authorship fixed in any tangible medium of expression. For example, original literary works such as books are protected under the copyright law. So are original musical works, including any accompanying words; dramatic works, including any accompanying music; pictorial, graphic and sculptural works; pantomimes and choreographic works; motion pictures and other audiovisual works; sound recordings; and architectural works.


On the other hand, copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described or explained.

The easiest way to illustrate the difference between original expressions that are protectable under the copyright law and ideas and processes that are not, is to use the example of an inventor who writes a book about his invention. Under such circumstances, the invention would be considered an idea and would not be protected by the copyright law. However, the expressions in the inventor's original book would be considered a literary work and would be protectable under copyright law.

What is copyright infringement?

Copyright infringement occurs whenever a party violates the exclusive rights granted to a copyright owner under the law. In that regard, the owner of a copyrighted work has the exclusive right to do and authorize any of the following activities:

* reproduce the copyrighted work in copies

* prepare "derivative works," which are works based on the copyrighted work

* distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending

* perform the copyrighted work publicly in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works

* display the copyrighted work publicly in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work

* perform the copyrighted work publicly by means of a digital audio transmission in the case of sound recordings

Anyone who is not the copyright owner and engages in any of the above activities without the authorization of the copyright owner has infringed the owner's exclusive rights. A court then may order that the infringing activities be stopped via an injunction, and the infringer may be liable to the copyright owner for monetary damages.

What are contributory and vicarious copyright infringements?

In addition to direct infringement referenced above, the law recognizes the principles of "contributory" and "vicarious" copyright infringement, which extend liability for copyright infringement to those people who either knowingly assist the direct infringer in their infringing activities or who have the ability to supervise the infringing activities in which they have a financial interest.

As the U.S. District Court for the Central District of California observed in Ellison v. Robertson, 189 F. Supp. 2d 1051; 62 USPQ2d 1170 (C.D. Cal. 2002), "One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be liable as a 'contributory' infringer ... Put differently, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

That court also observed that, "In the context of copyright law, vicarious liability extends beyond an employer/employee relationship to cases in which a defendant has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities ... Unlike contributory infringement, knowledge is not an element of vicarious liability."

What is fair use of a copyrighted work?

"Fair use" is a defense to copyright infringement. Under the fair use doctrine, even though the copyright owner has the exclusive right to do any of the above-referenced activities, the unauthorized use of a copyrighted work under certain circumstances for purposes such as criticism, comment, news reporting, teaching, scholarship, parody or research, is not a copyright infringement. In determining whether any use made of a work in any particular case is a fair use, courts examine the following factors:

* the purpose and character of the alleged infringer's use, including whether such use is of a commercial nature or is for nonprofit educational purposes

* the nature of the copyrighted work, for example, whether the work is a complex painting or whether it is an easily copied computer program

* the amount and substantiality of the portion of the copyrighted work used in relation to the work as a whole

* the effect of the use on the potential market for, or value of, the copyrighted work

How does the DMCA protect ISPs?

Recognizing that ISPs would be particularly vulnerable to claims for direct, contributory and vicarious copyright infringement, Congress designed the DMCA, in part, to create four "safe harbors" to insulate ISPs from most liability, should they be accused of violating copyright law. These safe harbors are:

* In the case of "transitory digital network communications," the DMCA provides a safe harbor for infringement of copyright by reason of the ISP's transmitting, routing or providing connections for infringing material, e.g. when the ISP is acting as a "conduit" for infringing material.

* In the case of "system caching," the DMCA provides a safe harbor for infringement by reason of the ISP's intermediate and temporary storage of infringing material on a system or network controlled or operated by or for the ISP.

* In the case of "information residing on systems or networks at the direction of users," the DMCA provides a safe harbor for infringement by reason of the ISP's storage at the direction of a user infringing material that resides on a system or network controlled or operated by or for the ISP, e.g. when the ISP is acting as a "host" for infringing material.

* In the case of "information location tools," the DMCA provides a safe harbor for infringement by reason of the ISP's referring or linking users to an online location containing infringing material or activity by using information location tools such as a directory, index reference pointer or hypertext link.

* In all cases, however, for an ISP to avail itself of the safe harbor protections, it must have no knowledge of the infringement. Furthermore, it is important to note that the insulation from liability provided by the safe harbors is available only under certain highly specified conditions. While many of the conditions are technical and specific, and therefore beyond the scope of this article, others are more basic and a discussion of them follows.

What are the basic steps an ISP must take to avail it of the DMCA safe harbors?

In order for an ISP to comply with the basic provisions of the DMCA and thereby avail itself of the DMCA safe harbors, an ISP must 1) adopt and reasonably implement a repeat infringer termination policy, 2) accommodate and not interfere with standard technical measures used by copyright owners to protect copyrighted works, and 3) comply with the DMCA's "notice and take-down" provisions. The following discusses each measure:

As to a repeat infringer termination policy, Section 512(i) of the act states that the DMCA's safe harbors apply only if an ISP has adopted and reasonably implemented, and informs subscribers and account holders of its system or network, of a policy that provides for the termination in appropriate circumstances of subscribers and account holders who are repeat copyright infringers. This provision implies that a contractual arrangement must exist between the ISP and its users, such as a Terms of Use agreement.

With regard to accommodation and noninterference with standard technical measures, the act requires that ISPs seeking safe harbor protection allow for "standard" measures that copyright owners use to protect their works online. An example of these measures is digital watermarks that can be used by copyright owners for tracking and identification purposes.

Finally, as to compliance with the DMCA's notice and take-down provisions, they apply only when an ISP claims safe harbor under the "caching," "hosting," or "locating" provisions of the act. That is, the second, third and fourth of the safe harbors.

Under those provisions, for an ISP to comply with the act, and thereby avail itself of protection, an ISP that receives notification of claimed infringement must respond expeditiously to remove or disable access to the material claimed to be infringing. Moreover, an ISP must designate an agent to receive such notifications.

Although other highly specific conditions must be met for DMCA safe harbor protection depending on various circumstances, compliance with the above steps is mandatory if an ISP seeks protection under the DMCA's safe harbors.

What is not required of ISPs under the DMCA?

Even in view of the foregoing requirements for compliance with the DMCA, ISPs need not take extraordinary actions to protect the rights of copyright owners. In that regard, courts have determined that under Congress' plan for the DMCA, ISPs are not required to provide for active investigation of possible infringement. Similarly, since the required infringer termination policy only refers to repeat infringers, ISPs are not required to take action for isolated infringing acts by single users. Also, ISPs are not required to act on or address difficult infringement issues. Moreover, the DMCA does not require ISPs to actively monitor for copyright infringement.

Finally, an ISP is not required to comply with the DMCA's notice and take-down provisions when it is acting merely as a conduit for infringing material under the first safe harbor provision.

Additionally, the recent case RIAA Inc. v. Verizon, 2003 U.S. App. Lexis 25735 (DC Cir. 2003), makes it clear that ISPs acting merely as a conduit are not required to comply with a copyright owner's DMCA subpoena to identify an infringer, because the validity of such subpoenas depends on compliance with the notice and take-down provisions, which are not a requirement under the conduit safe harbor (see article on P2P and the ISP, page 32).


Put another way, the court in the Verizon case observed that the ISP, acting as a conduit for peer-to-peer (P2P) communications, could not "takedown" the infringing material, nor was it required to under the act.

Therefore, the court determined that the DMCA's subpoena provision, which is contingent on the taking down infringing material, could not apply to ISPs acting only as a conduit.

In sum, the safe harbor provisions of the DMCA do not apply automatically. Rather, ISPs must comply with the foregoing basic requirements of the act before they may avail themselves of the protection offered by the safe harbor provisions. Accordingly, ISPs should take care to comply with the DMCA requirements so that they may limit their exposure to lawsuits for copyright infringement.

The information in this article is provided for general information purposes only and is not intended as specific legal advice. For specific legal advice regarding any issue, the reader should consult a qualified attorney.

Steven D. Lustig is an attorney at Stevens Davis Miller Mosher LLP, a law firm with offices in Washington, D.C., and Columbus, Ohio []. Lustig can be reached at
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Title Annotation:Internet service providers
Author:Lustig, Steven D.
Publication:Rural Telecommunications
Geographic Code:1USA
Date:Mar 1, 2004
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