(C): Notice & Take Down Pt. 1

by Howie Cockrill

If you are an individual or company offering a service on the internet, you may already be aware of “notice and takedown” or “safe harbor” rules for copyrighted content online.

If not – now is the time to learn. 

These rules, enacted in the 1998 Digital Millennium Copyright Act (DMCA), may just protect you and your website from landing in hot water for copyright infringement.

In this series, I will discuss the safe harbor provisions of the DMCA, who they apply to and the varying types of liability associated with online copyright infringement.

Keep in mind throughout this article that I have oversimplified many of the legal concepts and issues in order to provide a layman's overview of the subject. 

As always on MELON, the specifics of any particular situation will probably require a more in depth understanding and analysis.

The DMCA’s safe harbors are essentially procedures by which certain types of “Online Service Providers” can be exempted from liability.

I will go into the specifics of the safe harbors later – but first, let’s start by understanding who Online Service Providers (OSPs) are.

ONLINE SERVICE PROVIDERS

"Online Service Provider" is an umbrella term that includes not just ISPs, but a much larger gamut of service providers.

There are basically 4 types of Online Service Providers:

1. Conduits
2. Cachers
3. Hosters
4. Linkers

Conduits are OSPs that transmit, route or provide connections for content through a system or network controlled by the Conduit, or that provide intermediate storage for content in the course of transmitting, routing or providing connections.   

Cachers are OSPs that (by some automatic technical process) store content transmitted from one user to another. 

Hosters are OSPs that allow their users to store content on a system or network controlled by the Hoster. 

Linkers are OSPs that provide “information location tools” (including directories, indexes, references, and hyperlinks) that refer users to an online location that contains infringing material or activity. 

COPYRIGHT LIABILITY TYPES

Next, we should know the types of liability that exist for copyright infringement.  There are 3:

1.    Strict Liability
2.    Contributory Liability
3.    Vicarious Liability

STRICT LIABILITY

The term “Strict liability” is legal code. 

Translated it means, “you can get in trouble for simply doing something (or failing to do something) – regardless of whether you intended to do the act or intended its results.”

In copyright law, “strict liability" refers to the direct infringement of someone else’s copyright. 

Put another way, the elements of strict liability / direct infringement are:

1. proof that the plaintiff owns a copyright
2. proof that the defendant violated the owner’s copyright

Notice that there is no inquiry as to whether the defendant intended to infringe or had knowledge that what he or she was doing was wrong. 

In “offline” copyright law, there are plain benefits of applying “strict liability” to copyright infringement. 

Enforcement is much simpler because you don’t have to prove guilty intentions.

In the early 1990s – the courts and Congress used this “offline” copyright rationale as they grappled with how to make certain Online Service Providers liable for copyright infringement that took place on their websites.

One of the first cases on this issue was Playboy v. Frena in 1993. 

George Frena ran a subscription online bulletin board service, and on this BBS subscribers distributed and downloaded unauthorized copies of Playboy pictures.

In Frena, the court applied strict liability to defendant Frena – despite his argument that subscribers, not him, uploaded the pictures to the BBS.

Frena was found guilty because he supplied the service, regardless of his intent to infringe. 

Thus, in this early online infringement case – strict liability was applied to an Online Service Provider 

However, later court decisions would note that applying strict liability to Online Service Providers across the board can have significant drawbacks. 

One drawback is that OSPs would have to spend a good deal of time and money sorting through content posted on their sites, in order to ensure that there was no copyright violation.  These costs would likely be passed on to the consumer.

Another drawback – if there was a question as to whether some item of content was infringing – the OSP would be incentivized to air on the side of caution and remove the content, thus potentially chilling free speech online.

Court cases at the time, such as Religious Technology Center v. Netcom in 1995, also considered the slippery slope argument of applying strict liability to each computer involved in an instance of online copyright infringement.

Netcom said that OSPs online were like copy machine owners offline – both offer a service that can facilitate infringement, and both do have some degree of control over the use of their service. 

But copy machine owners are not held strictly liable for their user’s copyright infringement; they are held to the “contributory” liability standard. 

Thus, the trend became to apply contributory liability to online intermediary cases. 

In plain English and according to the courts –

Even though an OSP provides the means by which an internet user can infringe a third party’s copyrights, there are major drawbacks to holding the OSP liable regardless of whether the OSP knew of the infringement. 

Therefore, courts decided to apply a different liability standard called contributory liability.

Check back with MELON for Part 2 of this Notice & Takedown article, in which I discuss contributory liability.