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Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and the First Amendment

Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and the First Amendment

Yen, Alfred C., "Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and the First Amendment" . Boston College Law School Research Paper No. 2000-03.

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Abstract

    The Internet offers the fastest reproduction and distribution of information ever known, presenting fundamental challenges to copyright law. Practically anyone with a personal computer can receive and send information over the Internet, and so practically anyone has access to copyrighted works and can duplicate them, adapt them, or disseminate them. From the perspective of a copyright holder, even a single innocent use represents a threat. This Article examines the controversial proposal that Internet Service Providers ("ISPs") be held liable for the copyright infringements of the subscribers. The Article takes the position that the existing case law considering ISP liability for subscriber copyright infringement - under theories of direct liability, vicarious liability, and contributory liability - thus far has struck an acceptable balance between the property interests of copyright holders and the First Amendment rights of subscribers. The Article supports this contention with an examination of the rationales underlying the closely analogous field of enterprise liability in tort. It then examines recent Congressional legislation - the Digital Millenium Copyright Act ("DMCA") - providing "safe harbors" for ISP liability. The Article concludes that the DMCA, unless properly interpreted, threatens to upset the balance struck by the case law by creating an incentive to unduly restrict the free speech of subscribers.

Facts on copyright

  • With the exception of a small number of countries which still require notices to be on works, this requirement is generally optional except for works which were originally created before the particular country became a member of the Berne Convention (the members of which are collectively known as the Berne Union).
  • Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of a George W. Bush interview from NBC's Meet the Press. Although the fair use provisions may apply in such cases, the risks and the pressure from insurance companies usually prevents the use of materials without permission. In the US in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were constitutionally challenged unsuccessfully in the United States Supreme Court.
  • The author of an unpublished manuscript or little-known publication, which is remarkably similar to a popular novel, will have an uphill battle convincing a court that the popular novel infringes the copyright in their obscure work. Taking some precautionary steps may help to establish independent creation and authorship. For example, when a web designer designs a webpage (based upon his own work) under a contract for services, the webmaster owns the copyright in at least the underlying code of that website.

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