Internet Service Providers and Copy Right Issue

Option 1

Internet service providers (ISPs) that let their customers post unlicensed, copyrighted
evidence are responsible for infringement under the theories of indirect legal responsibility or
influential infringement. They will be considered responsible for contributing to the infringement
by delivering computer equipment that was then used by the customers to make and distribute
unlicensed copies. According to these ideas, ISPs could be held responsible for infringement
even if the only thing they did to cause the infringement was providing computers. In fact, this
seems to be a harsh penalty as it seems quite difficult to grasp a pen maker responsible for any
violation done with one of his pens. It’s similar to accuse a paper mill that produced the paper
and then it was used make duplicates that violated someone else's intellectual property. ISPs, on
the other hand, have active and ongoing control over the ways that pirated content can be stored
and sent to large audiences. Therefore, the study opposes that statement, given in Option 1.

Before going into details, it is crucial to understand what is ISP? And who is the Internet
service provider. According to the definition, "provider[s] of online services or network access,
or the operator of facilities for those things," and "entities offering the transmission, routing, or
providing of connections for digital online communications, between or among points specified
by a user, of material chosen by the user, without changing the content of the material as it is
sent or received," are all define the term "service provider." Thus, as per the definition, the
internet service providers are held responsible for everything that is being shared through their
platform, and if something bad happens then they are legally held responsible for that. This is
because every service provider is responsible to take filter measures to avoid any fraud or illegal
activity through their platform.

Though, ISP liability for copyright violations has not been the subject of many court
decisions because the Internet's meteoric rise in popularity has only happened in the past few
years. This doesn't mean that there haven't been a few cases where ISPs were blamed for any
kind of violation, but a number of lawsuits are settled before decision-making. Before the Digital
Millennium Copyright Act (DMCA) was approved, courts tried many different ways to put on
copyright laws to the enquiry of ISP accountability. Here is a brief history of those attempts
(discussed in the following section).

In 1993, a bulletin board owner was given a preliminary injunction because he let people
upload and download Playboy images1 without a license. When the operator let users upload and
download the photos, the problem started. The court decided that the defendant directly broke
Playboy's copyright, even though the defendant said he didn't know about the violation, didn't
upload the photos himself, and took them down when Playboy told him to. The court did decide,
though, that the defendant had broken copyright policy of Playboy. After few months, another
bulletin board promotor was found who had broken copyright laws. In contrast to what happened
with the Playboy, the operator in question actively encouraged customers to store Sega video
games on their system.2

In the Northern District of California the Federal District Court was asked to resolve if
Netcom could be apprehended responsible for something that was uploaded on its website by a
customer. It was said that these stuffs broke the Church of Scientology's copyrights because they
had copies of papers that belonged to the Church. Three important decisions were made by the
court. First, since Netcom wasn't the one who uploaded the content in question, the company
can't be held personally responsible for any content posted by a client that violates the law. In a
nutshell, the customer who did the uploading was directly answerable for the transgression, and
the Internet service provider was responsible for the tools available. This part of the decision
seemed to directly contradict the way things were done in the case of Frena. Second, it was
declared by the court that there is no specific information to link the violation and finances of
Netcom. So, the company cannot be directly held responsible for the violation. Third, even
though the court cleared Netcom of direct infringement and vicarious liability, it didn't say that
Netcom couldn't be held responsible for contributing to the infringement. So, during the trial, it
will be talked about whether or not Netcom pushed the client to post things that were thought to
be infringing.

1
Frena, 839 F. Supp. 1552 (M.D.Fla. 1993) Frena, Inc. v. Playboy Enterprises, Inc.
http://www.jmls.edu/cyber/cases/frena.txt.
2
The case Religious Technology Center v. Netcom Online Communication Services, Inc., 907 F.Supp. 1361 (N.D.
Cal. 1995), can be found online at http://www.jmls.edu/cyber/cases/netcom.txt>.
 To further evaluate either ISP is liable for copyright infringement or not, it is better to
understand the the Digital Millennium Copyright Act,3 under which the 105th Congress tried to
discourse the apprehensions of Internet service providers (ISPs) and copyright holders. “The
World Intellectual Property Organization (WIPO) Copyright Treaty” and “the Performances and
Phonograms Treaty” were thought to be put into action by the Digital Millennium Copyright Act
(DMCA), which is also known as House Resolution 2281. The DMCA was officially made a law
on October 28, 1998. Title II talks about what online service providers have to do legally. The
title restricts the accountability of Internet service providers for several issues, like provisional
digital network infrastructures, system hoarding, connecting or denoting operators to websites
with invading resources, and storing copyright-violating material on their systems without
knowing it.

Though according to the DMCA4 the internet providers are held responsible for ensuring
all security measures but also they protect them in specific cases. In particular, the DMCA
protects internet service providers from being liable for copyright infringements in specific
situations, which are described as following;

• A service benefactor is not accountable for any kind of copyright contravention if a user asks
the service provider to store material on a specific network or a system then the service provider
who controls or works for the customer is considered accountable. The service provider will be
responsible as long as he stores the material according to the user's instructions.

• If the service providers do not have actual knowledge about any activity or resource material
that is violating any law.

• If the service provider is being unaware of facts and circumstances and having no exact
information for any infringement

• If the service provider takes quick action to remove the item or block access to it as soon as he
or she learns about it or figures out what it is;

3
Please read the section of his memorandum on Title II of the Millennium Act by following this URL:
<http://www.ari.net/dfc/html/jb-memo.html#TITLE II>
4
“The World Intellectual Property Organization (WIPO) Copyright Treaty” and “the Performances and Phonograms
Treaty” were thought to be put into action by the Digital Millennium Copyright Act (DMCA),
• If service provider does not do anything that could reasonably be expected to lead to the
disclosure of confidential information.

• If service provider acts quickly to delete or block permission to the infringing resource or any
violating activity, after receiving notice of the alleged infringing activity as described in (3); (18)

Thus, the service provider is not legally responsible to the alleged infringer if “it has
assigned an agent to receive reports of claimed infringement." Notices must meet the many
different rules that were mentioned in the Act5. They must mention the copyrighted resource at
issue, as well as the alleged copyright violation, and give "reasonably sufficient" evidence to the
ISP. So that the ISP can find and remove the material that is being accused of copyright
violation.

However, when analyzing the case of Housecounsel, it was able to find both the
copyrighted resource (The Secrets of Highly Intrepid Humanitologists) and the apparently
trespassing page (DeBunker's page), but still it is not obvious whether Housecounsel gave the
ISP "reasonably sufficient" evidence to discover the copyrighted material and take it down. Thus,
it is against the Act6 to make a claim of infringement that is intentionally false or to retort to a
prerogative of violation with a false claim that the infringing material has been taken down.
Moreover, the Act also confines the accountability of Internet service providers (ISPs) who
remove allegedly violating content when asked to do so by the holder of the copyright material.
The title-holder of the copyright can issue a summon to force the ISP to reveal the information of
the customer who made infringement.

Conclusively, the study analysis has shown that “Internet service providers should be
liable for copyright infringement. Thus, If copyright infringement occurs on the Internet,
copyright owners can enforce their rights against uploaders, as well as against the Internet
service providers.”

5
the Digital Millennium Copyright Act
6
Ibid.
 References

1. Ronald G. Dunn, Information Industry Association, H.R. 2281 and H.R. 2180 Hearings before

House Courts and Intellectual Property Subcommittee (Sep.16, 1997), at

<http://www.house.gov/judiciary/4007.htm>.

2. Marc L. Caden & Stephanie E. Lucas, Accidents On the Information Superhighway: On-Line

Liability And Regulation, 2 Richmond J. of L. & Tech. issue 1 (1996), at

<http://www.urich.edu/~jolt/v2i1/caden_lucas.html>.

3. Pamela Samuelson, Copyright, Digital Data, And Fair Use In Digital Networked

Environments (1994) (see particularly the section on "Technological and Contractual Means

For Overcoming Digital Replicability"), at <http://www.droit.umontreal.ca/crdp/en/equipe.

4. Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and

Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995).

5. Raymond T. Nimmer & Patricia Ann Krauthaus, Copyright on the Information Superhighway:

Requiem for a Middleweight, 6 Stan. L. & Pol'y Rev. 25 (1994) .