THE COMMUNICATIONS DECENCY ACT

"Don’t kill the messenger!" is the rallying cry of ISPs and web masters, and to a very substantial degree they have succeeded in getting legislators and courts to fall in. Beginning with the Communications Decency Act (CDA), which extended very strong protection from liability for tort claims such as defamation, ISPs have been shielded from claims seeking to hold them responsible for damage caused by content providers’ or subscribers’ mischief.

Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997)

At present, Zeran is the leading case upholding the CDA’s limitations on the liability of ISPs for messages posted by subscribers or others. In granting immunity to AOL for defamatory postings by a third party concerning the plaintiff, the court held that the CDA provided AOL, as an ISP, with immunity against any cause of action that would make it liable for information originating with a third-party user of AOL’s service.

For further information about this case see our in-depth analysis. Zeran is also discussed in our first amendment section.

Title II - Online Copyright Infringement Liability Limitation

Although the act speaks in terms of "service providers," the term is defined broadly, as it was in the CDA, in recognition of the fact that, in an interactive medium, many actors can find themselves in the position of providing online access to content provided by others. It was contemplated that providers of e-mail, chat room, and web page hosting services would receive protection. Similarly, operators of sites to which others may post content, should fall within the statute's definition of a "service provider": "A provider of online services or network access, or the operator of facilities therefor." 17 U.S.C. Sec. 512 (k)(1).

Safe Harbors

The first two sections of the title concern limitations on liability for "Transitory Digital Network Communications," i.e., "transmitting, routing, or providing connections for, infringing material through the service provider's network," and "system caching," that is, maintaining a copy of materials on the Internet which are in high demand, to speed system response times for users seeking the material. The "safe harbor" requirements for these two sections are relatively straightforward, and the operations being protected are generally carried out by commercial service providers.

Safe Harbors For Storing Others' Content, And Providing Navigation Tools

More generally applicable are the safe harbors against copyright infringement liability for storing infringing material put on a service provider's system by a user, and directing users to infringing material on other sites, by providing "information location tools," such as directories, indexes, search engines, or simple hypertext links.

The "Notice And Removal" Regimen

The heart of the copyright safe harbor provisions is the requirement that, to obtain the liability limitation benefits, a service provider must comply with very specific requirements regarding responses to claims of copyright infringement.

First, service providers must identify a designated agent, by posting the identifying information on the provider's web site, and also by providing the information to the Register of copyrights. Upon receiving a notice of claimed infringement, that is, a claim that a service provider is making a third party's infringing material accessible online, the service provider will notify the party who posted the infringing material, and take the material offline, or otherwise block access to it. There is, additionally, a "counternotification" procedure for the alleged infringer to follow. If the alleged infringer does not provide a proper "counternotification," the service provider is free to take down the allegedly infringing material. If there is a "counternotification," the service provider must pass it along to the copyright owner who initiated the dispute. The burden is then on the copyright owner to go to court and seek a restraining order. If the service provider does not receive notice that such a court action has been initiated, it must put the alleged infringing material back up between ten and fourteen business days after receiving the "counternotification."

In addition to these exacting notification requirements, the service provider must also demonstrate the following: that it did not have actual knowledge that the material was infringing; that the infringing nature of the material was not apparent to it; that the service provider acted expeditiously to remove or block access, upon discovering the infringement, or becoming aware of information which makes the infringement apparent; that the service provider did not gain a financial benefit directly from the infringing material, while having the right to control the material. 17 U.S.C. Sec. 512 (c)(1).

A service provider must also have a policy for terminating subscribers who are repeat infringers, and the service provider's system must not interfere with "standard" technical protective measures such as digital watermarks or copy prevention software.

Finally, the act does indicate that service providers do not have an affirmative obligation to monitor content put up by others.

SPAM

Although by no means completely victorius, ISPs have thus far held the upper hand in their war against unsolicited commercial electronic mail, or spam. The range of legal issues surrounding spam are discussed in depth elsewhere on netlitigation but from the ISP perspective the passage of statutes, such as Washington’s Unsolicited Commercial Electronic Mail Act, which provides ISPs with specific monetary relief and a safe harbor for blocking, and the results obtained through litigation suggest that both the legislative and judicial branches of government recognize the importance of the ISPs’ role with regard to the Internet and the unique nature of the ISPs’ business.