Tag Archives: ISP

November 7 / All Articles, Copyright

Shooting The Messenger: ISP Liability For Contributory Copyright Infringement

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*


March 31 / All Articles, Computing

Narrowing The Definition Of An Interactive Service Provider Under § 230 Of The Communications Decency Act

The September 11, 2002 attacks on the World Trade Center in New York killed thousands of Americans. [1] Numerous firefighters and police officers lost their lives in attempts to save innocent civilians. [2] There is little doubt that capitalizing on such tragedy would be cruel and inhumane, yet many items memorializing September 11 were sold soon after the tragedy, and many of those items were sold online. [3]


eBay is the Internet site through which registered users can bid or auction off almost anything imaginable. [4] Memorabilia related to the September 11 attacks is no exception. [5] Immediately after September 11, eBay banned sales of September 11 memorabilia through its website. [6] On December 31, 2001, eBay officials abruptly ended the ban because they felt enough time had passed since the attacks. [7] Since then, numerous items ranging from fire department badges to a dusty pair of boots, supposedly worn at Ground Zero, have appeared for sale on eBay. [8] Although eBay removed some items at New York City’s request, some memorabilia related to the attacks were still available as of February 21, 2002. [9] New York City Mayor Michael Bloomberg was pursuing legal options against eBay at that time. [10]


Whether eBay should be legally liable for sales of September 11 memorabilia by its users and whether eBay should bear any civil liability instead of its users are decade old questions. [11] These questions have clear but unfortunate answers under current legal doctrine. [12] eBay will not be liable for its users’ activities because § 230 of the Communications Decency Act (“CDA”) protects interactive service providers (“ISPs”) from any civil liability for users’ activities online. [13]


Congress enacted § 230 of the CDA in response to two cases in the 1990s that set forth contrasting standards for defamation liability in suits against ISPs related to users’ activity on the Internet. [14] In 1991, the United States District Court for the Southern District of New York concluded that CompuServe, an ISP, was not liable for defamation because it simply enabled users to access the Internet. [15] In 1995, the New York Supreme Court held that Prodigy, which provided a service comparable to CompuServe’s, should be held liable for defamation. [16] Section 230 reflects Congress’s concern that imposing liability on ISPs may discourage self-regulation and impede the free flow of information over the Internet. [17] Section 230, therefore, protects ISPs from liability for their users’ activities, except in limited circumstances. [18]


Although § 230 provides federal immunity to a provider or user of an interactive computer service, it does not extend protection to an information content provider (“ICP”). [19] Section 230(f)(2) broadly defines interactive computer services as entities that serve multiple users over the Internet, and both ICPs and ISPs are included in that definition. [20] An ICP, unlike an ISP, creates or develops information published on the Internet. [21] Once a company qualifies as an ISP under § 230(f)(2) and (c)(1), broad immunity from civil liability applies. [22] A threshold question under § 230, therefore, is whether an entity qualifies as an ISP. [23] The relevant parts of § 230 provide:


(c) Protection for “good samaritan” blocking and screening of offensive material


(1) Treatment of publisher or speaker


No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.


(2) Civil liability


No provider or user of interactive computer service shall be held liable on account of ….


(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) ….


(f) Definitions as used in this section: ….


(2) Interactive computer service


The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server ….


(3) Information content provider


The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. (emphasis added) [24] [25] In 2001, however, the California Superior Court held that eBay qualifies as an ISP under § 230, in its capacity as an online auction operator. [26]


eBay benefits monetarily from sales of September 11 memorabilia. [27] Moreover, eBay presumably has the ability to block those sales. [28] The profits eBay would forego seems insignificant in comparison to the harms that society sustains by allowing people to capitalize on tragedy. [29] These harms should not go unpunished simply because they occur on the Internet. [30] Although it seems sensible for eBay to bear some responsibility for not banning sales of September 11 memorabilia, the current legal doctrine under § 230 of the CDA leads to the opposite conclusion. [31]


The Internet is a powerful tool to disseminate information at the speed of light. [32] In addition, the landscape of the Internet has changed since the enactment of the CDA in 1996. [33] Traditionally, ISPs only facilitated users’ access to the Internet. [34] Over time these ISPs expanded into non-traditional roles such as providing informational services, forums, or linking, which transcend merely providing access to the Internet. [35] For example, America Online (“AOL”) initially provided its subscribers e-mail accounts and Internet access. [36] As of 2002, however, AOL offers a variety of information and services, including financial news, gossip on Capital Hill, and instant messaging. [37]


Despite the changes and importance of the Internet, the CDA continues to provide immunity to any entity as long as information or statements are created or originated by third parties. [38] While growing numbers of entities qualify as ISPs–for example, eBay and Amazon–the definition of ISP under the CDA remains overbroad. [39] The CDA prohibits courts from applying any additional test to ISPs to determine which ISPs should benefit from immunity. [40] Courts, therefore, do not impose civil liability on ISPs even when imposing liability protects the Internet as a valuable source of information. [41] For example, ISPs are not obligated to authenticate any information posted by a user, even when doing so is feasible. [42] Under such a broad immunity that imposes no incentive to self-regulate, the Internet may lose its utility as a powerful tool to disseminate information because the public will no longer rely on information obtained from the Internet. [43]


This Note explores why Congress’s definition of ISP is inadequate and argues that Congress should narrow the scope of ISP under § 230 by allowing courts to engage in a three-factor balancing test. Part I illustrates the broad definition of “ISP” under § 230, under which any entity that serves multiple users over the Internet can qualify as an ISP. Part II discusses the definition of “ICP” under § 230 and the mutually exclusive distinction between “ISP” and “ICP.” Part II also discusses case law and academic commentary regarding further expansion of that definition. Part III describes the way Internet Wire operates to illustrate further, in Part IV, that the CDA does not encourage ISPs to self-regulate, resulting in harm that can be prevented at a small cost. [44] Part IV argues that the current definition of ISP is inadequate because it applies indiscriminately and because it does not reflect the reality where ISPs serve ICP-like functions. Finally, Part IV proposes a three factor balancing test as a way to narrow the definition of ISP under § 230.


Miree Kim*

June 4 / All Articles, Copyright

On-Line Copyright Infringement Liability For Internet Service Providers: Context, Cases & Recently Enacted Legislation

“If you can’t protect what you own–you don’t own anything.” [2] Motion Picture Association of America

“To promote the progress of knowledge on the Internet, those who are building the Net itself need fair and predictable ground rules” [3] U.S. Telephone Association


The above quotes, the first from a member of the content community and the second from an association representing telephone companies and Internet Service Provider (ISP), highlight the tension that exists between copyright holders and Internet Service Providers concerning the issue of on-line copyright infringement liability. As the Internet has grown, the problem of on-line copyright infringement has developed into an economically significant issue. [4] According to the Motion Picture Association of America, U.S. companies are losing millions per year to on-line copyright pirates, and with the current growth of the Internet, the content community fears that the amount lost to pirates will only increase. [5] The ISP industry, however, while acknowledging its unique position in terms of the Internet, does not want to become a “deep-pocket”, third-party defendant in every on-line copyright infringement lawsuit. The Internet Service Providers have argued that the law’s lack of predictability in this area and its standards for ISP copyright liability over the past few years have caused real concerns for this new and growing industry. [6] ISPs have argued that due to the nature of the Internet and the unique role of the ISP industry, a narrow limitation on copyright infringement liability should be established for Internet Service Providers so that those who are building the Internet will have a clearer sense of how and when they might be held liable for on-line copyright infringement. [7] In turn, they argue that a heightened level of certainty about this issue will help speed the growth of the Internet by encouraging more entrepreneurs to enter the ISP industry. [8]

How fast has the Internet grown? At the end of the Reagan-Bush era, just six years ago, the world of cyberspace consisted of fewer than 50 World Wide Web sites, most of them used by computer scientists and physicists. [9] Today the Internet is no longer just for researchers, and it is expected that within five years international commerce on the Internet could reach $3.2 trillion. [10] The fact is that in the past 72 months the number of Internet users has risen from hundreds to millions of users, and is estimated by some experts to reach perhaps a billion users by the year 2008. [11] In terms of copyright infringement, the commercialization and exponential growth of the Internet create an entirely new set of problems for copyright holders. [12]

In this context, it is understandable why writers, publishers, and researchers often look upon using the Internet as “riding the Tiger.” While the Internet has allowed researchers, educators, artists and publishers to expand their markets at an unprecedented rate, the same technology allows any anonymous and invisible copyright pirate to copy and disseminate instantaneously anything that is displayed on the Internet. Understanding how easy it is to duplicate copyrighted material from the Internet today, the content community has valid concerns about how much easier pirating could be five or ten years from now, and they argue that something must be done now to address this problem. [13]

Recognizing the inherent difficulty of enforcing copyrights against individual Internet users world-wide, some experts have argued that the answer to this problem is placing legal liability for copyright infringement on those who allow and enable Internet copyright pirates to exist, namely the ISPs. [14] It is argued that ISPs profit from the pirates’ use of the Internet, and in comparison to an independent publisher or author, an ISP is in a much better position to police how its subscribers use the Internet. [15] On the other side of the argument, ISPs claim that they are passive carriers similar to telecommunications companies and therefore should be granted some limitation from copyright infringement liability. [16] In addition, they argue that to make ISPs liable could stifle the growth of the Internet. [17]

Others argue that the answers to this problem will come from technological innovations, such as the use of “digital watermarking”, rather than through legal reforms. [18] In addition, the argument has been made that cooperation between ISPs and the content community is what is truly needed to solve this problem. [19] ISPs share the content community’s desire to see the Internet grow, and some believe that the threat of holding ISPs liable for copyright infringement may not be the best way to encourage ISPs to help minimize Internet copyright piracy. [20]

The issue of on-line copyright infringement has been around since the use of the Internet started to expand rapidly in the early 1990’s and has been the subject of extensive federal executive branch activities, court cases, and Congressional action. In the closing days of the 105th Congress, President Clinton signed into law a bill that addressed this issue; Title II of the Digital Millennium Copyright Act, the Online Copyright Infringement Liability Limitation Act of 1998. [21]

This paper will analyze the policy arguments, the court cases, and the legislative process that produced this law.

As for the structure of the paper, the first section will discuss the Clinton Administration’s activities concerning this issue. The second section will briefly address statutory copyright law in general and will put the specific issue of on-line copyright infringement liability in context by analyzing the five leading court cases in this area of law. The third section will address the policy arguments for and against the establishment of a limitation on copyright infringement liability for Internet Service Providers. Lastly, this paper will analyze the final version of the legislation that has been signed into law, and discuss why enacting this bill into law is a step in the right direction for the Internet.


Mark E. Harrington [1]