Spring 2003

The Cybertelecom Report: Networks and Copyright Infringement: DMCA Immunity
by Robert Cannon

The Unregulated Internet? Where?

Since the first great legislative confrontation concerning the Internet, the Communications Decency Act, the mantra in Washington has been to keep the Internet "unfettered" from legislation and regulation. But regulatory creep has founds its ways to the shores of cyberspace, and slowly but surely, the Internet has been encumbered by federal regulation.

This new column is dedicated to exploring federal initiatives that impact the Internet and what this might mean for community networks and CTCs. Some of these are obligations and pitfalls; some of these are opportunities and benefits. This column will explore how you can take advantage of these initiatives.

This column is meant to be a general discussion akin to talking about how you might change your life to avoid heart attacks. It is designed to be an educational tool.  It is not meant to be a replacement for surgery. In other words, this endeavor should better educate you about the issues, the questions, and things you might look into. But it is not a replacement for legal advice.

The Digital Millenium Copyright Act

To set off upon the right foot, the first topic of discussion is an opportunity. Telephone carriers are immune from copyright infringement lawsuits for their subscribers because they are "common carriers." By definition, a common carrier is not responsible for the content or goods that it carries. I could read to you Sartre's Being and Nothingness over the phone and the phone company would never be liable if that were infringing activity.

Is this true of Internet networks? After all, many Internet networks, like telephone networks, are involved in nothing more than carrying the bits. They are not involved in the creation or requesting of the content. They merely provide the conduit. But Internet networks have never been declared "common carriers." Further, many large copyright stakeholders who cannot reach out and touch the actual infringers have sought to make networks liable for third party infringement.

Enter the Digital Millenium Copyright Act. Some community networks want to provide Internet connectivity to their constituency. Some of these constituents will find new and cool things like Napster and other music sharing services, and some of these constituents might be engaged in copyright infringement. In situations such as these where the network is neither the provider nor the requester of the infringing content, where the network is merely providing transmission, the DMCA provides a defense to the network for contributory copyright infringement liability. In order to qualify for this immunity, the network must implement a policy for dealing with subscribers who are repeat offenders and not interfere with technical efforts to protect content.

A lot of networks give their constituents the opportunity to host webpages and store content. Here too the network can be protected from liability where it has no hand in or direct benefit from the creation of that content (a direct benefit would be deriving revenue from the website itself as oppose to revenue from merely hosting the website). In addition to the previous requirements, the network must not know that the content is infringing, must name an agent for service of process, and must comply with notice and take down.

To name an agent, the network should fill out the "Designation by Service Provider of Agent for Notification of Claims of Infringement" form and send it to the Copyright Office along with a check for $30. The network should also post the name of the agent on its website.

Now the network must do the dance of notice and take down. Where an alleged copyright owner provides proper notice to the network of an alleged infringement, the network is to take down the identified content. Notice is then given to the content creator who has the right to counter notice. If the content creator says, no no no, that is legitimate legal content, then the network must provide notice to the copyright owner that the content will be restored in 10 days. The network must then restore the content unless the network receives notice that the copyright owner has filed suit.

This is, of course, the DMCA dance in five minutes. The details are more elaborate. What you should walk away from this with is that you may wish to name someone on staff to be the DMCA agent and have that person become well versed in how the DMCA works. These provisions of the DMCA can be found in Title 17, Chapter 5 of the United States Code, Section 512.

Robert Cannon is Senior Counsel for Internet Issues in the FCC's Office of Plans and Policy. He is also the Founder and Director of the Washington Internet Project , a pro-bono project dedicated to promoting awareness of and participation in federal regulatory developments that affect the Internet. Robert moderates the Cybertelecom-l electronic discussion list and edits the e-newsletter Cybertelecom News.

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