Friday, March 31, 2006

ISPs and Section 512 of the DMCA

What is an ISP?
According to Webopedia, which describes itself as "The only online dictionary and search engine you need for computer and Internet technology definitions," an ISP is:
Short for Internet Service Provider, a company that provides access to the Internet. For a monthly fee, the service provider gives you a software package, username, password and access phone number. Equipped with a modem, you can then log on to the Internet and browse the World Wide Web and USENET, and send and receive e-mail.
It is fair to say that this is what most people think of when they hear ISP: a company that provides Internet service. Most people would also agree that this is not what Google does (yet at least).

Another term is OSP, or Online Service Provider, which can be defined as:
A business that provides its subscribers with a wide variety of data transmitted over telecommunications lines. Online services provide an infrastructure in which subscribers can communicate with one another, either by exchanging e-mail messages or by participating in online conferences (forums). In addition, the service can connect users with an almost unlimited number of third-party information providers.
This sounds more like what Google does, but the catch is that no one "subscribes" to Google. For example, among the largest OSPs are companies like AOL and MSN. Like an OSP, Google connects its users with an almost unlimited number of third-party information providers (like this or your blog), but the openness and free availability of Google's services seems to set it apart from what is traditionally understood as an OSP.

However, Congress has a different definition for what constitutes an ISP under the Digital Millennium Copyright Act.

Why does it matter if Google is an ISP?

Being labeled an ISP has its benefits, namely that section 512 of the Digital millennium Copyright Act provides limitations on liability for copyright infringement by ISPs. By satisfying the various requirements of section 512, an ISP can seek protection from liability for "all monetary relief for direct, vicarious and contributory infringement." 512 also protects ISPs from other things, such as injunctions in certain instances, but the ban on money damages is key for, more often than not, there is little reason to bring a lawsuit if winning won't provide a financial windfall from a defendant with deep pockets.

The Digital millennium Copyright Act, Section 512

The DMCA creates 4 "safe harbors" for parties deemed to be "service providers." These exemptions limit the liability of a party the engages in conduct specified in section 512.

The first safe harbor covers transitory communications. This exemption arises when a service provider is charged with copyright infringement based on the transmission of material through its system.

In order to qualify under the transitory communication exemption, a party must qualify as a "service provider" defined in section 512(k)(1)(A) as:
An entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.

The second safe harbor exemption covers system caching, limiting the liability of a service provider "by reason of the intermediate and temporary storage of material on a system of network controlled or operated by or for the service provider."

The third exemption is for service providers who allow storage of information on systems or networks at the direction of users. Such an example would be a company providing server space for a website or blog.

The final exemption covers information location tools, applying to the "infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." This exemption was tailored to specifically address search engines.

In order to qualify for the last three "safe harbor" exemptions, a party must qualify as a "service provider" defined in section 512(k)(1)(B) as:
A provider of online services or network access, or the operator of facilities therefore.
Notice how much broader this definition of service provider is than when dealing with transitory communications. EBay has been declared a service provider under this statute and there is virtually no limit to what could be swept under this definition. Theoretically, any website showing that it provides an online service could qualify as an ISP and avail itself of the liability limitations set forth under section 512.

Impact of DMCA 512
The safe harbor provisions of section 512 exist as additional defenses for search engines, on top of any claim for fair use. That means that even if certain behavior is deemed to be direct infringement, section 512 serves as a limit to the relief sought. However, the ins and outs of how exactly these exemptions apply is still up in the air due to the vagueness of the language in the statute (as noted by the definition of ISP, for example), meaning that much of 512's meaning will have to resolved in the courts. Each of the four safe harbors requires its own post on this blog, detailing the more specific requirements of each and how courts have interpreted them, but that is to come and this post is to serve merely as a framework for further discussion of the issue.
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