DM Copyright Act

Liability under the original Copyright Act left Internet Service Providers (ISPs), i.e. Yahoo, AOL, and electronic Bulletin Board Services (BBS) wide open for copyright infringement lawsuits. Any time a user took a copyrighted work, threw it on a BBS, via his or her ISP connection, for a recipient to read, everyone (ISP, BBS, sender and receiver) could have been liable under one form of liability or another.

The reason for this is that liability under the Copyright Act is absolute. That means, ``Sorry it was an accident" or ``I didn't even know they were doing it" or even ``I didn't know it was a copyrighted work" doesn't get you off. Even a third party (ISP) who is not directly involved in violating the copyright holder's rights can be found liable. This is called vicarious liability. It is imposed upon an entity or individual who has the capacity to dictate the infringing behavior, and has a direct commercial benefit in exploiting the infringement.

If vicarious infringement does not get you, then contributory infringement will. This is when a person or entity consciously encourages, causes, or materially contributes to the infringing conduct of another. From our previous example this would be the BBS supplying the forum for direct infringers to post the copyrighted work.

In order to give the ISPs a chance, Congress enacted another amendment to the Copyright Act. This amendment was called the Digital Millennium Copyright Act (DMCA). See 17 U.S.C. § 512. Under the DCMA, service providers are given a ``safe harbor" provided they do the following:

• Adopt a written policy providing for termination of subscribers and account holders or users who are repeat offenders.The policy should be posted on directly on the web site. Not in the microscopic fine print somewhere 100 clicks from where anyone routinely goes
• Designate an agent to receive notification of claimed infringement from the copyright owner pursuant to the requirements of 17 U.S.C. §512(c)(3)(A). The agent can be an employee of the company, or someone outside the organization. The agent must be in a position to respond quickly to any notices of claimed infringement. The lawn boy will not cut it.
• Post the name, address, phone number, and email address of the agent in a publicly accessible place on the website.
  
• Register the designated agent with the Copyright Office.

Furthermore, a service provider is not liable for copyright infringement when it is performing the following roles:

• Data Transmission through a network provided, 1) transmission is for a third party, 2) it's an automatic transmission, 3) material is kept no longer than essential to finish the transmission, 4) material is transmitted without alteration.
• System Caching where a service provider makes available transitional or impermanent material storage on a system/network, so long as 1) the material is posted to a third party, 2) the storage and access is automatic, 3) the material is not altered, 4) the material is updated as necessary, 5) there is restricted access to the material, 6) the ``caching" does not impede with providing material to the originating site
• User Storage on the system at the asking of the user provided, 1) the provider does not have actual knowledge or cause to think the material is an infringement, 2) they receive no financial benefit from the infringement, 3) quickly removes or disables access to the infringing material upon notice.
• Information locator via supplying the links for a user to end up at a sight where copyright infringement is ongoing, provided, 1) the provider does not have actual knowledge or cause to think the site is infringing, 2) they do not receive a financial gain form the infringing site, 3) promptly disable the link upon notification of the infringement.

If you are going to operate a BBS your life did get simpler with the enactment of the DCMA, however you are far from the clear.