Published in MLRC MediaLawLetter, May 2004.
By Andrew Bernstein and Tyson Dyck
Technology has always driven copyright reform. Each new mediumófrom audio recordings to televisionóhas offered a new way to capture and disseminate ideas. Copyright law tries to balance this dissemination with the rights of the copyright holders.1 Now faced with digital technology, copyright law must repeat this balancing act: excessive regulation hampers the potential of digital technology to be used to communicate ideas quickly; too little regulation, however, strips copyright owners of their moral control over and economic stake in their works. Many jurisdictions, particularly the United States and Canada, have balanced or are beginning to balance this conflict in similar ways. Indeed, proposed Canadian initiatives are likely to produce a regime of ISP liability in copyright similar to that in the United States.
U.S. copyright law regarding ISP liability has largely been codified in the Digital Millennium Copyright Act (the "DMCA")2 and the Communications Decency Act (the "CDA").3 The CDA's objectives are to prevent obscenity from being transmitted over the Internet and to promote the development of the Internet.4 To achieve these objectives, the CDA states that providers of interactive computer services, including ISPs, will not be treated as the publishers or speakers of information provided by a third party.5 This "Good Samaritan" clause was originally intended to encourage ISPs to monitor and edit content on their servers without fearing liability under defamation law as publishers or editors. However, this provision has been broadly interpreted and now protects all ISPs regardless of whether they edit or monitor their online content.6 The case of Gucci America v. Hall & Associates7 suggests that this limitation will only immunize ISPs against claims of online defamation. Still, the CDA treats ISPs as conduits, not sources, of objectionable information.
The DMCA follows this thinking with respect to copyright infringement. Under this Act, if an ISP creates a policy of terminating the accounts of repeat copyright infringers, it will not be liable for its own actions or for those of its infringing customers provided that its actions fall into one of four safe harbors. These harbors protect the following activities: acting as a mere conduit for infringing information;8 caching;9 innocently storing infringing information;10 and supplying information location tools (i.e., links) that might infringe copyright.11 On the other hand, ISPs are responsible, on threat of civil liability, for administering a detailed notice and take-down system.12 If an ISP becomes aware of an infringing activity, either through notice from the copyright holder or through other circumstances, it must take action.13 It must remove the allegedly infringing material, erring on the side of protecting the copyright holder; it need not assess the fair use of the material.14 However, to avoid a system of prior restraint of speech, the DMCA provides for "counter-notice," which permits the person posting the information to make a statement that the material does not infringe, and thereby...