Internet Service Providers (ISPs) [1] are an essential component of the internet: they enable users and content providers to connect with one another online. [2] In enacting the Digital Millennium Copyright Act (DMCA), the purpose of which was to strengthen copyright protections in the digital realm, Congress recognized both the important role played by ISPs and the danger of copyright infringement liability for ISPs under existing case law. In response to this concern, Congress included the Online Copyright Infringement Liability Limitation Act (OCILLA) safe harbor provisions [3] to shield innocent ISPs from liability for contributory copyright infringement.

 

Recent trends in judicial enforcement of contributory copyright infringement claims against ISPs and judicial interpretation of the DMCA safe harbor provisions, however, undermine the balance sought by Congress in the DMCA by imposing excessive liability upon ISPs. [4] The danger of this trend is that such enforcement will have a significant chilling effect on ISP investment in the internet, which fosters both the growth of e-commerce and the ability of a larger segment of the population to participate in the internet community– both of which ultimately benefit the holders of intellectual property rights.

 

Shielding ISPs from liability for contributory copyright infringement in accord with the DMCA safe harbor provisions does not leave copyright holders without the means to prevent infringement in the digital realm. The DMCA offers numerous options for copyright holders in cyberspace that are not available in “real space,” such as the technological self-help anti-circumvention provisions of 17 U.S.C. § 1201, [5] the subpoena provisions of 17 U.S.C. § 512(h) [6] that enable copyright holders to locate and bring suit against direct infringers, and the notice and takedown provisions of 17 U.S.C. § 512(b)-(d). [7]

 

Parts II and III of this note discuss the law of contributory copyright infringement and the safe harbor provisions of the DMCA, respectively. Part IV discusses recent judicial enforcement of contributory copyright infringement claims against ISPs and the interpretation and application of the DMCA safe harbor provisions in those cases. Part V discusses the policy implications of such decisions and argues for a more faithful judicial adherence to the congressional mandate….

 

David Ludwig*