When the Internet Service Provider Is Immune From Copyright Infringement Liability

Lover's Leap in SnowThe Digital Millennium Copyright Act provides immunity to Internet service providers (“ISP”) that store infringing information on their servers.  This protection, however, is strictly based on the service provider meeting specific requirements established by the statute:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider –

(A)       (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

17 U.S.C. § 512(c).  Of particular note in § 512 is the “and” at the end of section B, which establishes a requirement for all three of the elements before the ISP will be able to claim protection from liability (also known as the “safe harbor”).  The federal courts have agreed with this all-or-none approach.  For example, the D.C. Circuit court explained that:

Information residing on systems or networks at the direction of users creates a safe harbor from liability for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider as long as the ISP meets certain conditions regarding its lack of knowledge concerning, financial benefit from, and expeditious efforts to remove or deny access to, material that is infringing or that is claimed to be the subject of infringing activity. See 17 U.S.C. §§ 512(c)(1)(A)-(C).

Recording Industry of America v. Verizon Internet, 351 F.3d 1229, 1234 (D.C. Cir., 2003) (citations omitted).

The Middle District of North Carolina also provided a thorough examination of the nature of the safe harbor for service providers and the balance of interests between the copyright holders and the ISPs whose services may be used to infringe copyrights.  At the end of the analysis, the court noted that :

The DMCA safe harbors do not render a service provider immune from copyright infringement. They do, however, protect eligible service providers from all monetary and most equitable relief that may arise from copyright liability.  Thus, even if a plaintiff can show that a safe harbor-eligible service provider has violated her copyright, the plaintiff will only be entitled to the limited injunctive relief set forth in 17 U.S.C. §§ 512(j) . . . Upon compliance with various requirements set out in their respective portions of the statute, all four types of [statutorily defined service providers] may gain immunity from liability for copyright infringing information that passes through or is stored on their networks or systems by users.

In re Subpoena to Univ. of NC at Chapel Hill, 367 F.Supp.2d 945, 948-49 (M.D.N.C., 2005) (citations omitted).  These cases show that the ISP are immune to copyright infringement liability only when all three conditions listed in the statute have been met.  Thus, a failure to comply with any of the statutory requirements renders the safe harbor unusable and the ISP may be liable for infringing your copyright.

The Chapel Hill court also examined the background and requirements for a service provider to be designated “innocent.”

[t]he compromise, as enacted in the DMCA, both preserves copyright enforcement on the internet and provides immunity to service providers from copyright infringement liability for “passive,” “automatic” actions in which a service provider’s system engages through a technological process initiated by another without the knowledge of the service provider.  This immunity, however, is not presumptive, but granted only to “innocent” service providers who can prove they do not have actual or constructive knowledge of the infringement, as defined under any of the three prongs of 17 U.S.C. §§ 512(c)(1). The DMCA’s protection of an innocent service provider disappears at the moment the service provider loses its innocence, i.e., at the moment it becomes aware that a third party is using its system to infringe. At that point, the Act shifts responsibility to the service provider to disable the infringing matter, reserving the strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.

This balancing effort resulted in a statute that creates strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital network environment.  For instance, a copyright owner who suspects that her copyright is being infringed must follow the notice and take down provisions set forth in §§ 512(c)(3) of the DMCA.  Once properly notified, a service provider must respond expeditiously to remove, or disable access to, the material that is claimed to be infringing.  If a service provider fails to take down the potentially infringing material, it exposes itself to copyright liability.

Id. at 947-49. (citations omitted).

Accordingly, when you find an Internet service provider has posted one of your images without permission, don’t accept the provider’s claim of protection under the DMCA until you make sure that the ISP has met all of the statutory requirements.

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