Service providers and copyright infringement through internet

 “If you can’t protect what you own—you don’t own anything.” [1]

Motion Picture Association of America

In today's modern world Copyright laws face fundamental challenge from the field of Internet. Internet is the fastest growing technology which not only provides information but also distributes it all around the world. Accessibility of Internet and computer literacy among people has tremendously increased the use of Internet in recent times. Virtually, almost anyone who has minimum computer knowledge is able to access Internet and its services to receive and sent data all over the world.

Customers are provided access to Internet by Internet Service Providers or Internet Access Providers. An ISP connects customers into a data transmission technology that is suitable for providing software package which enables users to gain access to Internet. But are those ISPs responsible for any copyright infringement by conveying copyrighted contents created by others? Lot of aspects has to be looked into in detail from all point of views to get an answer to this question.

The law on copyright gives protection to "original works of authorship fixed in any tangible medium of expression." [2] The holder of a copyrighted material gets exclusive rights which lasts for the author's life time plus an extended period of fifty years. Copyright holder's exclusive rights comprise the right to reproduce, distribute, perform, demonstrate or license their work. When a copyright infringement occurs, the exclusive rights of the holder are being utilized by someone without the consent of the holder.  

To deal with it primarily, Copyright infringement basically occurs in three ways i.e., direct infringement, vicarious infringement and contributory infringement. The first one occurs in cases where a person flouts an exclusive right of a copyrighted product. The second one occurs in a situation where a person was unsuccessful to prevent an infringement when he should have prevented it and by doing so he directly gains from that infringement. Whereas in contributory infringement the person takes part in an act of direct infringement and at the same time is aware of such an activity.

Mostly copyright infringement through digital media and internet widely occur in countries with less stringent copyright laws. The most prominent international treaty related to copyright infringement is Berne Convention of 1886. With the Berne Convention Implementation Act of 1988, the United States became the 80th signatory of Berne Convention. US acceptance of the treaty was subject to an exception of moral right in Article 6 of the convention. In US, literacy criticism and parody are the most pertinent areas of copyright infringement defense under the fair use.

It is a disputed fact that ISPs profit from pirated use of the Internet and they have a superior position than an independent author or publisher to monitor consumer's use of the internet.  On the contrary the ISP argues that their role is similar to telecommunication as they are not active transporters and so they are liable to get some restriction to liabilities of copyright infringement. Furthermore, according to them liability towards ISPs could possibly restrain the augmentation of Internet and solutions to this issue would be possible only through innovated technologies.

The case Playboy Enterprises Inc. v. Frena , was decided in the year 1993 where the liability of copyright infringement by ISPs was considered by the court. The defendant being an operator of a computer bulletin board service naively circulated unauthorized copies of photographs belonging to Playboy Enterprises, Inc. It was agreed by Frena that the photographs were put on show in the BBS without an approval from Playboy. Nevertheless, it was the argument of Frena that he had not uploaded any infringing pictures to the BBS but his subscribers did it. He said as and when he was informed about the matter he removed the infringing pictures.

But upon hearing the case the court's verdict was against Frena and he was found guilty of copyright infringement. The court evaluated certain elements in making its decision for copyright infringement.

·         To constitute a prima facie copyright infringement the holder must establish ownership of the copyright and "copying" by the infringer.

·         Elements of access and similarity of infringed materials.

·         Whether the actions of the infringer violated any of the exclusive rights of the copyright holder.

According to the court Frena's actions had violated exclusive right of Playboy to distribute and display its work. Frena's defense of fair use exception to copyright infringement was of no use. The court considered the nature of Frena's action as commercial and decided that it has resulted considerably negative impact on the value of Playboy's material and so will not constitute a fair use exception. Court held that intent or knowledge is not necessary an element of copyright infringement and so even an innocent is liable for copyright infringement.

The Online Copyright Infringement Liability Limitation Act (OCILLA) is a federal act of United States that grants protection to online service providers including Internet service providers or other internet intermediaries from liabilities of infringement committed by others. The act came out as a portion of Digital Millennium Copyright Act (DMCA) in 1998.  It is added to Section 512 to Title 17 of United States Code which is often referred to as a "safe harbor" provision or as "DCMA 512." The objective of the act is to safe guard the growing interests of protected copyrighted materials and electronic and digital consumers.

The statute reads as follows:

§ 512. Limitations on liability relating to material online

(a) Transitory Digital Network Communications. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if —

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content.

One another important case regarding copyright relating to ISP is Religious Technology Center V. Netcom. In this case the defendant Dennis Erlich was a local critic and a former minister of the Church of Scientiology. He had subscribed an on-line BBS known as "support.com" controlled by Thomas Klemesrud who was another defendant in the suit. The online forum conducted discussions and criticism about the church.  Netcom was one of the biggest ISP in America and the BBS got access to the Internet through Netcom. The plaintiff Religious Technology Center and Bridge Publications, Inc. were the copyright holders of both published and unpublished work of the late founder of the Church of Scientology. Parts of the copyrighted work were posted onto the BBS by Mr. Hubbard. Subsequently, RTC approached Erlich and Klemesrud to remove the copyrighted materials, which they both refused to do. RTC charged Erlich with several claims but the claims against Klemesrud an Netcom primarily for direct and vicarious infringement of copyright.

While considering this case court examined the technology and working of the Internet and approved that the function of the internet is basically producing replica of provisional documents on each computer that accept, coveys and/or open a document. However the courts finding was that these technical replica could not be liable for direct copyright infringement by Netcom. The court found that Netcom did not instigate the copying of the copyrighted work instead it instituted a computer system that was incorporated into the internet. The court further observed that copyright infringement could not be applied in this case since all individuals who own a computer through which Erlich's message had send would be liable for copyright infringement. The court found this to be irrational and held that "there is no need to construe the [Copyright] Act to make all of these parties infringers."

According to the court though copyright statute imposes strict liability there should be a component of violation or causation when a defendant's system is used by a third party to merely copy or create something. The court further observed that it is not sensible to adopt a regulation leading to liability of a number of parties whose part in the infringement is to set up and operate a system that is essential for the performance of Internet.

The liability of copyright infringement on the Internet often turns to a point where the extent to which the owner or Internet Service Provider or Bulletin Board Service operator is aware and controls information kept on the Internet by each individual subscriber. The implementation of Online Copyright Infringement Liability Limitation Act can be considered as a blessing for the ISP and for the Internet as such. For many years major concern about this issue was that the subject of copyright infringement through Internet had made Internet Service Provider's time and money to defend cases than getting programmers. But the Online Copyright Liability Limitation Act has provided great opportunity for service providers to build the technology of Internet rather than spending money and time to defend a copyright infringement case. Information Technology Act of 2000 releases ISPs from any liability of copyright infringement provided they can prove that they are unaware of the act and they had taken all precautions to avoid any violation.

Submitted by

Vinitha Prasannan

Sources:

[1] WIPO Copyright Treaties Implementation Act & Online Copyright Infringement Liability Limitation Act: Hearing on H.R. 2281 & H.R. 2180 Before the Subcomm on Courts & Intell. Property of the House Comm. On Judiciary , 105th Cong. 33, at 78 (1997) at 78 [Hereinafter House Judiciary Comm. Hearing on WIPO Treaty & Online Copyright Legislation, September, 1997 ] (prepared statement of Jack Valenti, President & CEO Motion Picture Association of America (MPAA).

[2] § 102. Subject matter of copyright: In general

http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1999060401.html

http://www.copyright.gov/onlinesp/

http://www.copyright.gov/title17/92chap5.html