isp's liability

our blog content;

2009-10-14T12:42:00.019+08:00

1.1 Broadband Service Providers in Malaysia

2.0 Civil Liability of Internet Service Providers;
2.1 Copyright Liability
2.2 Relevant cases to Copyright Infringement
2.3 Trademark liability
2.4 Contract and Fraud
2.4 Defamation
3.0 Criminal Liability of Internet Service Providers
3.1 Obscene Materials
3.2 Contempt of Court
6.0 A Comparative Analysis
6.1 ISP's liability in Australia
6.2 ISP's liability in the United States
6.3 ISP's liability in Germany
6.4 ISP's liability in Malaysia
6.5 ISP's liability in Singapore

ISPs' liability in Singapore

2009-10-11T17:30:00.002+08:00

In Singapore, ISPs will be able to enjoy a certain level of immunity from copyright infringements claims. It is provided under the USSFA. USSFA is Unite States -Singapore free trade agreement, where both countries have agreed to their terms of protection for copyrighted works, performances and phonograms in a line. It also covers additional protection to the standards relevant and applicable to the digital environment.

There are defences to the service provider regarding to the copyright infringement which can be regarded as immunity for them. However, they are only can enjoy such immunity for the functions stated by Article 16.9.22(d) which consist:

• Transmitting, routing or providing connections for material without modification of its content, or the intermediate and transient storage of such material in the course thereof;
• Caching carried out through an automatic process;
• Storage at the direction of a user of material residing on a system or network controlled or operated by or for the service provider; and
• Referring or linking users to an online location by using information location tools, including hyperlinks and directories.

The immunity applies only if the service provider does not initiate the chain of transmission of the material and does not select the material or its recipients. Except to the extent that a function described in 3.3 (d) in itself entails some form of selection.

Furthermore, Singapore Copyright Act was silent on whether network service providers were liable in situations where there was copying in a cache system and where copyright material was made available on the Internet on demand using a search engine. In an article written by Susanna H.S Leong, it states that;
"A significant amendment to the Copyright Act concerns that of the liability of ISPs. To address the issues relating to ISPs, a whole new Part IXA on 'Works, or other subject-matter, in electronic form' is introduced into the Copyright Act."
Susanna H.S Leong opined that section 193B states that the copyright in any material is not infringed by an ISP when it does any act in relation to an electronic copy of the material made available on a network if the -Transmission, routing and provision of connections (Sec 193B)
-System caching (section 193C)

Moreover, this article also states that, if an ISP has to remove an electronic copy of any material from a network operated and controlled solely by him or if he has to disable access to the material on the network, he may defend himself under section 193D conjunctively with provisions under section 193C(2)(b) from any criminal liability under any rule of law with the condition that such event was done due to statutory declaration.

ISPs' Liability in Malaysia

2009-10-11T17:27:00.003+08:00

Although, Malaysia does not have any provision which specifically governs the ISPs' liability, but it is controlled under the Communication and Multimedia Act 1998 in part 1 under section 6.
Under this section, ISP is divided into 5 types because it has different type of license.

1 network facility
any element or combination of elements of physical infrastructure used principally for, or in connection with, the provision of network services, but does not include customer equipment.

2 network service
a service for carrying communications by means of guided and / or unguided electromagnetic radiation. Example a company which provides communication service like Telekom, Maxis, DiGi and many more.

3 application service provider
person who provides an applications service.

4 content application service provider
an applications service which provides content.
Any website which provide a information which has content inside. For example Youtube, Wikipedia, Wobopedia and many more.

5 network service provider
A company that provides Internet access to ISPs. Sometimes called backbone providers, NSPs offer direct access to the Internet backbone and the Network Access Points (NAPs)

Generally in Malaysia, the ISP's liability is governed by the Multimedia and Communication Act 1998. Section 211 provides that;
(1) No content applications service provider or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.
(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.
Regarding to the defamation, there is a difficulty in establishing an ISP's liability for defamation is that national defamation laws differ so widely.

According to Chris Reed and John Angel ,
"… it is possible to state with certainty that in most, if not all, jurisdictions, the fundamental basis of defamation liability is the publication of untrue information, that liability will be based on the extent of the damage to the reputation of the person referred to in that information, and that the person's reputation of the person referred to in that information, and that a person's reputation cannot be damaged unless the information is disseminated to people other than the author."
In a simple word defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.

The laws governing defamation in Malaysia include in civil and criminal cases. In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable. Whereas in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.

Copyright in Malaysia is controlled by the Copyright Act 1987. A very basic formulation is that there will be a copyright infringement when an individual copies a work which is held in an electronic format without the owner’s permission.

The authors also stress that ISP is only able to operate by copying information. If the ISP is merely part of the communications chain, it copies received pockets into memory (probably onto disk) and then sends fresh copies to the next host in the chain.

However, any copy to the RAM is considered most likely not an infringement. It is because of their lack of permanence and it could not be said to breach copyright.
However in daily operations, ISP will make further copies on a range of storage media, for example hard disc when caching a resource or DAT tapes when making a backup copies of a resource. (Playboy Enterprise v Frena).

The ISP also must comply with section 263 of the Communications and Multimedia Act 1998, Part x, General , Chapter 4, National Interest Matters regarding to the general duty of licencees which provides that:
"(1) A licensee shall use his best endeavour to prevent the network facilities that he owns or provides or the network service, applications service or content applications service that he provides from being used in, or in relation to, the commission of any offence under any law of Malaysia.

(2) A licensee shall, upon written request by the Commission or any other authority,assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security."

As reported in The Star Online, dated 28 August 2008, " Section 263 falls under the National Interest Matters part of the Act which states that an Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) licensee would prevent their facilities from being used in, or in relation to, the commission of any offence under any law of Malaysia. It also states that upon written request of the SKMM or any other authority, the licensee would assist to prevent the commission or attempted commission of any offence under any written law of Malaysia, including but not limited to the protection of public revenue and the preservation of national security."

ISPs’ liability in Germany

2009-10-11T17:26:00.002+08:00

Since 1^st August 1997, Germany had already listed out the liability of the Internet Service Providers’ regulation. This regulation is laid down in the Teleservices Act and the Interstate Media Services Treaty. This Act provides different functions of ISPs and the services that an ISP could perform. Based on the Act, ISPs are liable for their own infringed contents according to the prevailing rules. However, for the case of infringement of content made by their users, they will only be liable if they have the knowledge about the infringed contents and if they technically able to prevent its use on the Internet. ISPs are also not liable for the third-party contents to which in this case they only provide access to the Internet.

A lawsuit which has been reported in Germany about the infringed contents was on 30^th March 2000 whereby a Munich court convicted America On Line (AOL) to pay damages to the owner of copyrights in MIDI music-files. AOL had offered a ‘music soundforum’ to its subscribers that enable them to upload and download music files from the forum. AOL could not avail itself of the defence offered by the Teleservices Act because AOL possessed knowledge of the infringement and could easily stopped it.

sources: netlaw

ISPs’ liability in the United States

2009-10-11T17:23:00.003+08:00

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.

ISP's liability in Australia

2009-10-11T17:22:00.001+08:00

To date, issues on copyright infringement in Malaysia is governed by the Copyright Act 1987, Australia on the other hand is governed by the Australia’s Broadcasting Services Amendment (On-Line Service) Act 1999. The Act was forced in the summer of 1999 by the Australian parliament but it only takes effect on 1^st January 2000. The Act enjoins the Australian Broadcasting Authority (ABA) as the government body which will scrutiny the particular contents which are going to be posted online. Under the ABA, there is a Classification Board which will do the task of filtering and classifying the Internet contents besides react to the complaints regarding the infringement.

According to the Act, ABA will take action on the ISPs by providing a take-down notice if they are detecting any prohibited content on the Internet hosted by the ISPs in Australia. The ISPs ought to comply with the notice within workdays and if they failed to take any reasonable actions and measures to assure that the prohibited contents are not reappearing on their server, they are liable to be fined up to A$ 27,500 per day which is a heavy sanctions!

The Act also provides the situation whereby if the prohibited contents are uploaded on the Internet but they are hosted outside of Australia, the ISPs in Australia which offered the access to the contents will be given a notice demanding to take all reasonable means to block access to the contents or to block the contents according to the relevant rules of a (business) code. After complying with the notices sent to them, the ISPs will have to follow the information duties and procedures which are laid down in the codes of practice otherwise they will face the sanctions.

ISP's liability- defamation

2009-10-11T09:22:00.012+08:00

Liability for a defamatory statement may also be extended to an ISP under the principles of vicarious liability or because, in providing online access facilities, the ISP is directly liable as a publisher or disseminator of the offending statement.The fundamental basis of defamation liability is the publication of untrue information. The liability to be imposed is based on the damage to the reputation of the person referred to in the information that is then disseminated to others. The case of Godfrey v Demon is the first UK case to find a responsibility on the part of an ISP in regards to defamation. In this case, the defendant, an ISP was sued for a defamatory statement carried in a newsgroup hosted on its server. The court held that because Demon chose to receive and store the newsgroup, and had the power to delete the messages from it; it was therefore considered as a publisher and is subjected to any specific defences under the Defamation Act 1996. However, in the case of Cubby Inc v Compuserve Inc, it was held that an ISP’s chosen mode of activity in passing on information from third parties unmodified and unexamined rendered it more like a distributor than a publisher and thus not liable for allegedly defamatory statements made by a subscriber in posting to news group.

The difficulty in establishing an ISP's liability for defamation is that national defamation laws differ so widely.

According to Chris Reed and John Angel (2000, Computer Law, 4^th Edition, London, Blackstone Press Limited), "… it is possible to state with certainty that in most, if not all, jurisdictions, the fundamental basis of defamation liability is the publication of untrue information, that liability will be based on the extent of the damage to the reputation of the person referred to in that information, and that the person's reputation of the person referred to in that information, and that a person's reputation cannot be damaged unless the information is disseminated to people other than the author." In a simple word defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.

The laws governing defamation in Malaysia are including in civil and criminal cases. In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable. Whereas in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.

In Singapore, with respect to the role of ISPs. section 10 of the Electronic Transaction Act protects an ISP from liability from making, publication, dissemination or distribution of third party materials, if the ISP were merely providing access to such materilas. A third party refers, in this context, to a person over which the ISP has no efective control.

http://www.singaporelaw.sg/content/EconomicTorts.html)

ISP's liablity- contract and fraud

2009-10-06T10:08:00.004+08:00

When reviewing about ISPs’ liability, the main issue that we should not neglect is the promise of the ISPs and how they are able to keep the promise to provide good and better service for their subscribers. Subscribers will pay for the service provided so what is the consideration given on the part of the ISPs? An Internet Service Provider as discussed in past posts is a company which provides Internet access to its subscribers in exchange for a monthly fee. This has involved a deal of contract between the ISP and its particular subscriber. In contract, parties of it have to abide the obligation agreed upon signing the contact or the legal agreement. Thus, in this situation, we would like to stress that whenever an ISP signs an agreement to provide the Internet access service to its subscriber and receive the required fee, it is to be said that they have to ascertain that the subscriber is able to use their server to access the Internet in all reasonable means.

However, what if one of the subscribers cannot access to the Internet just like what have been promised on the time they made the deal? Is this considered as a breach of contract? What are the rights of the subscribers as they had already paid the fee? This week post will discuss about the contract and fraud liability on the ISPs and focused on a trademark case on this issue.

In the context of ISPs liability, if the above situation occurs, the ISPs are said to be liable to the breach of contract as well as fraud. An agreement made by the ISPs and their subscribers upon receiving the fees is to provide and facilitate their subscribers to have an access to the Internet. Thus, if any of their subscribers cannot be able to access to the Internet and the primary cause of that disability is due to the failure of the ISPs, they are persuaded to claim their right by taking a legal action towards the ISPs as they have breach the contract and committing fraud.

There is an American case (there are no Malaysian cases reported yet) reported regarding this issue on contract and fraud liability by ISPs. Taken from the BitLaw, the case is all about the famous America On Line (AOL) which is one of the biggest ISPs in USA. When AOL announced that it was shifting to a flat-rate billing policy, AOL's proprietary and Internet access services were overwhelmed. Customers who tried to dial in were often greeted by busy signals, and access to the Internet was very slow. Although AOL's performance improved, that did not stop frustrated customers from bringing lawsuits against the company. These suits alleged that AOL knew that their service would be overloaded, but nonetheless went ahead with the flat-rate plan. The suits alleged that AOL was in breach of its contracts with its customers (by not providing the agreed upon service) and had committed fraud by knowingly misleading current and prospective customers. At this point, AOL has not been found liable for its actions. However, the message for ISPs is clear. Deliver on all of the promises you make to your customers, and only promise what you can deliver.

Through the stated case on AOL, it is clearly shown that a contract deal is not to be breached and all the obligations within the contract must be fulfilled based on what has been agreed between the parties. For the purpose of liability on ISPs, we have to be aware that a promise to serve an Internet access is still a contract which needs to be done and any technical difficulties will not be an excuse when dealing with cyber problems.

For more information, visit this site.

trademark liability.

2009-09-29T14:03:00.003+08:00

Besides copyright liability, ISPs also has to face liability over trademark infringement. According to BitLaw, if an ISP advertises their services under a trademark that is confusingly similar to a mark of another party (such as Netcomp, IBMLink, or CompuService), they would be exposed to charges of trademark infringement. In short, if the trademark used by the ISPs looks like the others’ trademark which tend to make users confuse, it is said that the ISPs have involved in trademark infringement.

According to eccouncilapac.org, Trademark liability typically involves a trademark owner suing a domain name registrant for a "bad faith" or wrongful domain name registration. The registration of an available domain name does not absolve it from potential trademark liability, if the owner of the same or a confusingly similar trade name can prove a "bad faith" registration.

The same as with the copyright infringement, an ISP is not directly liable towards any trademark infringement made by its users but however it could be liable for contributory trademark infringement. The element of knowledge is also vitally essential in putting the ISPs into this liability as if there is no knowledge in the part of the ISPs provider, the liability cannot be imposed towards them. Much like the contributory copyright infringement, contributory trademark infringement also can be established whereby the ISPs are considered to play the role of encouraging or facilitating the illegal activities.

However, there are still no reported cases on this trademark liability towards ISPs but referring to BitLaw, the Netcom decision should be referred and discussed in connection with the cases of copyright infringement.

by,
farahiyah, anis & fara.

broadband service providers in malaysia

2009-09-28T22:59:00.001+08:00

broadband service providers in Malaysia

source: http://www.redesignmalaysia.com/isp

Broadband service	Type	comments
TMnet Streamyx	Wired	Currently has the most users.
Jaring Broadband Wired/Wireless	Wired/Wireless	Limited coverage areas.
Time Broadband	Various	Service satisfactory in limited areas that are covered. Many different packages available.
Airzed WiMax	Wireless	Currently rolling out in stages, website lists as coming soon.
DiGi Mobile Broadband	Wireless	Coverage is quite wide due to utilization of existing EDGE mobile network.
Nasion 1 Wireless Broadband	Wireless	Appears to be a boutique player for providing high-end corporate broadband services.
Maxis Wireless Broadband	Wirelesss	Somewhat limited coverage. See discussion at USJ.com.my Bandwidth capping, not P2P friendly.
Maxis 3G	3G	Maxis vs. Celcom 3G coverage commentary available at MyPDACafe.
Celcom 3G	3G	Widest 3G coverage so far. Maxis vs. Celcom 3G coverage commentary available at MyPdaCafe
Smart Ku-Band	Satellite	Uses satellite dish receiver similiar to Astro, but bigger. Expensive. Competes with Streamyx in Sabah/Sarawak and low population density areas in Malaysia.
Smart C-Band	Satellite	Uses satellite dish receiver similiar to Astro, but bigger. Expensive. Competes with Streamyx in Sabah/Sarawak and low population density areas in Malaysia.
EB Technologies MyWave24	Radio/Wireless	Billed by hour using prepaid cards - this is a hotspot service, not a residential one.
EB Technologies Residential / Commercial	Wireless/Wired	Package structure is confusing. From what I can tell, they offer both Wireless and Wired versions of their service.
PenangFon	Wired	Seems like a good service, but its Penang only.
AtlasOne	Wireless	Limited coverage area.
MyKris	Wireless	Official website is quite useless, hard to use and doesn’t have information about the service. Price was gotten from an e-mail from a customer service rep. More information at this forum discussion. Service quality debatable - comments are either saying its very good or very bad.
ZapZone	Wireless	Extremely limited coverage - Only 20 locations throughout Malaysia.
GoLightSpeed	Wireless	Available in limited areas. Seems to be in pre-registration mode.
IM Wirefree Broadband	Wireless	Coverage available in Klang Valley. PC Card costs RM1000.

ISP's Criminal Liablity

2009-09-16T14:47:00.010+08:00

Besides facing civil liability such as copyright infringement and defamation, an ISP is also liable for criminal liability. There are two kinds of liability listed under the criminal law which are;

-Possession of Obscene Materials

-Contempt of the Court

POSSESSION OF OBSCENE MATERIALS

In each state, the law which governs the provision concerning possession of obscene materials are different. For the purpose of discussing this issue, we will look through the law used in certain states.

Malaysia

the Printing and Publication Act 1984 (Act 301)

Undesirable publications

Section 7 (1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned.

the Multimedia and Communication Act 1998

Prohibition on provision of offensive content

Section 211

(1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.

The transmission by ISPs:

There are 3 ways to impose this liability on ISPs;

-Impose liability on the ISP which has the knowledge on the dissemination of the obscene materials. This will allow the defense of no knowledge.

-Impose on the ISPs which disseminate the obscene materials for profitable purpose.

-Impose on the ISPs which disseminate obscene materials with knowledge but with exemption to the ISPs which operates by giving access to other servers without actively involved in the distributing of the obscene materials.

United Kingdom

the Obscene Publication Act 1951

An Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography.

1.Test of obscenity

(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Source: ics.leeds

CONTEMPT OF THE COURT

Another criminal liability that can be imposed on ISPs is concerning the materials which related to the contempt of the court. It may amount to Contempt of Court if the publication of materials is:-

Prejudicial to a fair criminal trial

Prejudicial to a fair civil proceeding

Interfering with the course of justice as a continuing process

Contempt in the face of court

Acts which interferes with the course of justice

Law:

Malaysia: Criminal Procedure Code (CPC)

United Kingdom: Contempt of the Court 1981

relevant cases to copyright infringement.

2009-09-02T14:14:00.006+08:00

As on the previous post we have discussed the issue of ISP's liability under copyright, hence for this time, we have highlighted a few cases that touches on the issue of copyright infringement. Hope that through these cases below, it gives you all a clearer view on how an ISP may be held liable under copyright infringement.
happy reading people!

In the case of Playboy Enterprises v Frena, a Bulletin Board Service (BBS) operator whose bulletin board contained copyrighted photographs owned by Playboy was found liable of violating the right to display and publish the photograph although the BBS operator did not make the copies himself, and in fact was never proven to have knowledge of their existence. In effect, this case held the BBS operator liable merely for providing a means by which copies (made by others) could be distributed to the public. This case is crucial in distinguishing the liability of an Internet service Provider and also a Bulletin Board Service.

A case that can be distinguished from the above case is the case of Religious Technology Centre v Netcom On-Line Communication Services Inc. In this case, the judge refused to follow the case of Playboy Enterprises v Frena in delivering its judgement. The representatives of the Church of Scientology in this case has brought an infringement action against Netcom, which is an Internet Service Provider(ISP) whose customer had posted infringing copies of the works of L Ron Hubbard to a newsgroup. The judge rejected the allegation that the ISP had in fact infringed directly as Netcom itself did not cause the infringing copies to be made. The decision made by this judge has also been followed by several cases including the case of ALS Scan, Inc v Remarq Communities and also the case of Harlan Ellison v AOL. The court further stated in this case that if Netcom had knowledge that infringing material was passing through its servers and failed to take action to prevent the dissemination of such, then only would they be liable of the infringement.

Other than that, in Gershwin Publishing Corp v Columbia Artists Management Inc, the court laid down the factors to be taken into consideration for a defendant to be liable of contributory infringement. Firstly, the defendant must have knowledge of the infringement and secondly, the defendant must have induced, caused or materially contributed to the third party’s infringing conduct.

In the case of Kazaa BV v Vereniging Buma & Stichting Sterma Amsterdam Court of Appeal, the court held that the KaZaa system could be used to exchange legitimate files and also infringing files which did not require further involvement by KaZaa itself. Therefore, KaZaa cannot be liable unless it is guilty of authorizing users of its software to infringe copyright which could not happen as the software can also be used to exchange legitimate files.

Another interesting case is the case of Viacom International Inc v. YouTube Inc By early 2007, Viacom had noticed that lots of fans of SpongeBob had been uploading clips and episodes to YouTube. As the fans of SpongeBob were a numerous and evasive bunch, Viacom thought it might be prudent to also engage in negotiations to license SpongeBob to YouTube. Such a license would bring revenue to Viacom, while obviating the unpleasant task of tracking down and prosecuting its base of loyal customers. However, the negotiations broke down, and on March, Viacom filed a $1B lawsuit against YouTube for copyright infringement. These are among Viacom's complaints:
1) Viacom claims that YouTube itself publicly performs the SpongeBob videos on the YouTube site and other websites.
2) Viacom claims that YouTube causes SpongeBob to be publicly displayed by showing individual images of infringing video clips in response to searches for videos on YouTube. It appears that YouTube takes a frame from videos that are uploaded to the website, and transforms that still image into a thumbnail image that is used as a hyperlink. As a result, a user searching for a video will be able to peruse a series of images and more easily locate the video that satisfies his search.
3) Viacom claims that YouTube is making and otherwise authorizing copies of SpongeBob into its video database. The main argument that Viacom seems to make here is that, even though the files are uploaded by users, by inserting itself into the process by converting the uploaded file from its native format into Flash, YouTube is now copying the uploaded files.

In the English Premier League's case, the US Judge holds that foreign companies are required to register their copyrights in order to safeguard their rights to claim statutory damages under US law. The plaintiffs in this case alleged infringement of copyright before the US Courts against YouTube in respect of unauthorised football content appearing on YouTube.

YouTube (now owned by Google) argued that because the Premier League had failed to register its copyrights, then this prevented the Premier League from claiming statutory damages for copyright infringement.

The Premier League argued that requiring foreign copyright owners to register their copyrights would violate the Berne Convention. The Berne Convention is an international copyright treaty, to which the US has signed up. The Berne Convention states that the enjoyment and exercise of copyright “shall not be subject to any formality“, i.e. such as registration. In the UK, copyright subsists automatically upon creation, subject to certain qualifying criteria.

The US Judge disagreed, stating that the US considered that the requirement, that foreign copyrights must be registered, was compatible with the US’s obligations under the Berne Convention. The Judge went on to state that that non-US companies must register all works with the US Copyright Office, within three months of first publication of such works, if they ever wish to claim statutory damages for any subsequent infringement of these works.

Ultimately, the Premier League’s case for copyright infringement against YouTube in this respect wasn’t fatally damaged as it appears that they were able to rely on a different legal provision to retain their right to claim statutory damages.

However, this case serves as a reminder for copyright owners to consider registering their copyrights in the US, if they want to protect their ability to recover statutory damages before a US court.

source: stricklandtrademarklawyer

In most cases, it can be seen that copyright law is moving toward the position whereby internet intermediaries would not be strictly liable for making copies of information that passes through their servers. A liability would most likely be imposed if

the intermediary actively encourages users to transport infringing material via its facilities and also;
where the intermediary has actual knowledge of the infringement and fails to take reasonable steps to prevent such infringement.

that's all for this post ppl! have a nice day ahead.

prepared by,
farah.anis.farahiyah

copyright liability.

2009-09-01T14:45:00.008+08:00

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;

copyright liability
trademark liablity
contract and fraud
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.

by,

Anis, Farahiyah, Farah.

what is ISP?

2009-08-20T17:14:00.005+08:00

In today's post, we would basically like to give you all a brief introduction about what ISP really is. We truly hope that all of you would find these information beneficial. Happy reading then!

According to Shelly Cashman Vermaat, in his book "Discovering Computers" an access provider is a business that provieds individuals and companies access to the internet for free or for a certain fee. Users may access the internet through regional or national ISP's, online service providers, and wireless internet service providers. However, for the purpose of our assignment, we'll be focusing mainly on ISP's alone. An ISP (Internet service provider) is a regional or national access provider. A regional ISP usually provides internet access to a specific geographic area while a national ISP provides access to cities and towns nationwide.

To have a further elaboration on ISPs, we have also gone through the internet references by searching the meaning and explanation on what ISP is. Below are some of the explanations on ISP's:

Internet Service Providers (ISPs)

A company that offers subscribers access to the Internet by providing them with accounts, usernames, passwords and in some cases, software that allows the users to connect to the Internet. ISPs may also provide other network services such as email delivery, retrieval and storage, webpage storage and development and domain name registration and hosting. ISPs serve as the link between individuals or LANS (Local Area Networks) and the Internet. ISPs may be smaller operations offering connectivity to local markets or large operations offering connectivity nationally or even globally.

Source: www.securityfocus.com/glossary/I

Another Internet reference that we are referring to is;

Internet Service Providers (ISPs)

Short for Internet Service Providers, a company that provides access to the Internet. For a monthly fee, the service provider gives you a software package, username, password and access phone number. Equipped with a modem, you can then log on to the Internet and browse the World Wide Web (WWW) and USENET and send and retrieve emails. In addition to serve individuals, ISPs also serve large companies, providing a direct connection from the company’s networks to the Internet. ISPs themselves are connected to one another through the Network Access Points (NAPs). ISPs are also called Internet Access Providers (IAPs).

Source: www.webopedia.com/TERM/ISP.html

In short, ISPs are the companies that provide their customers the access to the Internet through a monthly fee. Customers will be given their own personal account, username and password. Certain ISPs will also provide the software package to able their customers to send and retrieve emails. Examples of ISP's in Malaysia are:

Jaring

TMNet

Arcnet

Celcom.net

Maxis.net

Source: http://www.mycen.com.my/malaysia/isp.html

That's all for now folks! Thanks for spending the time to read our post!

Have a nice day ahead!

Written by,

Anis.Fara.Farahiyah.

welcome to our blog!

2009-08-14T15:44:00.003+08:00

hello people!
as part of our cyber law course, we are assigned to set up this blog so as to provide all of you an insight about the liability of internet service providers (isp).
our blog is still under construction though as we are still busy doing research on our assigned topic.
do check regularly for upcoming updates!
thank you for your visit.

with regards,
the authors,
farah.farahiyah.anis