Sunday, October 11, 2009

ISPs’ liability in the United States

In the United States, one of the Acts which provides the liability for the ISPs is the Digital Millennium Copyright Act 1998. This Act governs the liability of the Internet sites and ISPs for the copyright infringement of its user. It provides a mechanism for copyright owners to force site owners and ISPs to remove infringing material. For example, You-Tube which is an ISP as restricted by the Act have the right to remove any illegal post or unauthorized copy that are posted from its site.

When discussing about the liability for the ISPs, some of the cases which can be referred is the Netcom case and Sega Enterprises v. Maphia . These two cases are quite relevant to our topic which concerned the nature of You-Tube. In the Netcom case, the court held that the ISP is only liable for the contributory infringement and not under the direct infringement as the ISP uses an automatic pass-through of allegedly infringing messages posted by its subscriber. To pass under the contributory liability, the court decided that there must be a direct infringement, to which the contributory infringer, which in this case was Netcom, has knowledge and encourages or facilitates the illegal act. The court in the subsequent Sega v. Maphia case held that a BBS (Bulletin Board Service) and its system operator liable for contributory infringement for both the uploading and the subsequent downloading of copies of Sega’s video games by users where the system operator had knowledge that the infringing activities was going on through the bulletin board. In Sega’s case, the claim under direct liability was also refused by the court on the basis that the operator (Maphia) had not participated in the very acts of uploading or downloading themselves.

The element of knowledge must also be fulfilled to succeed under this claim. If the operator does not have any knowledge about the infringing materials post on its site, no liability can be charged upon the ISPs. In short, the requirement of knowledge may eliminate contributory liability on the part of ISP or BBS operator with respect to many instances of infringement for which ISP or BBS merely a passive information conduit and has no knowledge of the infringement.

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