Tuesday, September 1, 2009

copyright liability.

For this post, we will be discussing on the liabilities of ISP's. Mainly, there are 4 ways in which an ISP's liability may arise from which are;
  1. copyright liability
  2. trademark liablity
  3. contract and fraud
  4. defamation

For this post alone, we will be focusing on the
copyright liability.

Under the Copyright Act, a party is liable for copyright infringement if they violate the exclusive rights of the original copyright owner. Some of the rights are to prevent others from reproducing (or copying) a work, publicly displaying a work, or distributing a work. There are three categories that falls under ISP's liabilities which are
  • direct liability,
  • vicarious liability and;
  • contributory liability.

For direct liability, it is quite impossible to make an ISP liable for it because the basis for this claim is the direct infringement from the provider. In the case of Religious Technology Centre v Netcom On-Line Communication Services Inc , the court held that the ISP is not directly liable for the automatic pass-through of the infringing messages posted to Usenet by its subscriber. This is because the act of posting the infringing material is not the act of the ISP but by it’s a subscriber. The same goes in the subsequent case of Sega Enterprises v. Maphia where the court extended the logic of Netcom and refused to hold liable as a direct infringer the operator of a BBS for the uploading and downloading by subscribers of the unauthorized Sega’s video games.

However, according to BitLaw, Internet Service Providers (ISPs) can be found liable for copyright infringement even when they are not directly engaged in the copying of protected materials. For instance, ISP's are responsible for equipment, such as a computer operating as a server that is capable of making copies without any direct involvement of any person. But, the issue arises here is whether an ISP is liable for copyright infringement for the copies made by its equipment? In this case, the ISP's must be aware of the theories under the Copyright Act which also provide the provision which is known as the contributory liability. Under this liability, an ISP can be liable for infringement even if they do not directly take part in the copying or distribution of a work. Under this concept of "contributory infringement," an ISP may be guilty of copyright infringement when they cause or contribute to the infringing conduct of another with knowledge of the other party's infringing activities. In short, even they are not directly involved in posting the infringing materials but as the providers they indirectly facilitate the subscribers and users to post and upload the unauthorized copies illegally on their site. However, to succeed under this theory, an ISP must have knowledge that its users have posted such illegal copies on their sites which in our opinion is quite difficult and hard to prove.


Anis, Farahiyah, Farah.

No comments: