Major Labels v. Backbones
Jeff Ogden
jogden at merit.edu
Tue Aug 20 03:04:15 UTC 2002
I was looking at the text of the DMCA and came across the following
which makes me much less optimistic that a court will toss out the
RIAA's request for an injunction:
Section 512(j)(1)(B) If the service provider qualifies for the
limitation on remedies described in subsection (a [Limitation
for Transitory Communications]), the court may only grant
injunctive relief in one or both of the following forms:
(i) An order restraining the service provider from providing
access to a subscriber or account holder of the service
provider's system or network who is using the provider's
service to engage in infringing activity and is identified
in the order, by terminating the accounts of the subscriber
or account holder that are specified in the order.
(ii) An order restraining the service provider from providing
access, by taking reasonable steps specified in the order
to block access, to a specific, identified, online location
outside the United States.
However, the following section may offer some hope:
Section 512(j)(2) Considerations.-The court, in considering the
relevant criteria for injunctive relief under applicable
law, shall consider-
(A) whether such an injunction, either alone or in combination
with other such injunctions issued against the same service
provider under this subsection, would significantly burden
either the provider or the operation of the provider's
system or network;
(B) the magnitude of the harm likely to be suffered by the
copyright owner in the digital network environment if
steps are not taken to prevent or restrain the infringement;
(C) whether implementation of such an injunction would be
technically feasible and effective, and would not interfere
with access to noninfringing material at other online
locations; and
(D) whether other less burdensome and comparably effective
means of preventing or restraining access to the infringing
material are available.
I think a backbone provider could argue (A) that a requirement that
it block a site would be a significant burden unless all other
backbone providers are also required to block the same site, (C) that
blocking a single IP address or even a small range of IP addresses
isn't likely to be effective for very long and blocking larger IP
address ranges or an entire AS is likely to interfere with access to
noninfringing material at other online locations, and (D) that at
least attempting to work with the network provider that is actually
providing service to the infringing site or working through more
traditional international copyright enforcement mechanisms are less
burdensome and possibly more effective means of preventing access to
the infringing material.
-Jeff
>Date: Sat, 17 Aug 2002 15:31:03 -0400
>To: NANOG at merit.edu
>From: Jeff Ogden <jogden at merit.edu>
>Subject: Re: Major Labels v. Backbones
>Sender: owner-nanog at merit.edu
>
>At 11:23 PM -0700 8/16/02, Jim Hickstein wrote:
>>--On Friday, August 16, 2002 10:03 PM -0400 John Ferriby
>><john at ferriby.com> wrote:
>>>If there are any legal eagles here, can a Common Carrier be a contributing
>>>infringer?
>>
>>IANAL, but last I looked -- admittedly a long, long time ago --
>>ISPs were not afforded protection as common carriers (18 USC?), no
>>matter how much they tried to act like them. Has this changed?
>
>
>I agree that ISPs aren't common carriers in the legal sense, but an
>ISP's liability under U.S. copyright law is limited for "transitory
>communications". The following is taken from a December 1998
>publication "THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998--U.S.
>Copyright Office Summary" (page 10,
>http://www.loc.gov/copyright/legislation/dmca.pdf ):
>
>Limitation for Transitory Communications
>
>In general terms, section 512(a) limits the liability of service providers in
>circumstances where the provider merely acts as a data conduit,
>transmitting digital information from one point on a network to
>another at someone else's request. This limitation covers acts of
>transmission, routing, or providing connections for the information,
>as well as the intermediate and transient copies that are made
>automatically in the operation of a network.
>
>In order to qualify for this limitation, the service provider's
>activities must meet the following conditions:
> --The transmission must be initiated by a person other than the provider.
> --The transmission, routing, provision of connections, or copying must
> be carried out by an automatic technical process without selection of
> material by the service provider.
> --The service provider must not determine the recipients of the material.
> --Any intermediate copies must not ordinarily be accessible to anyone
> other than anticipated recipients, and must not be retained for longer
> than reasonably necessary.
> --The material must be transmitted with no modification to its content.
More information about the NANOG
mailing list