Botmasters/Victims and DMCA

[Viva Colombia <vivacolombia2005 () gmail com>]

Hi all, my question (for a legal paper that I'm writing) is whether a
botmaster and a person whose computer has been recruited in a botnet
can be considered as service providers, according to the broader
definition of service provider provided by 17 USC§512(k)(A-B). I've
found court decisions and some opinions, but none refer to botmasters,
they would only allow me to conclude that if theirs is an IRC botnet
and they provide, for example, chatting services through their command
& control bots, then they would indeed be service providers as per the
DMCA; but I found nothing related to whether peers in P2P botnets or
networks can be taken as service providers, bearing in mind that they
are used as storing devices and communications or transmittal nodes.

I'm trying to analyze whether they could be held liable for violations
of the Copyright Act when said violations take place through and
thanks to the botnets and thanks to the negligence of the owner of the
infected machine (who did not protect it appropriately), and if they
two could successfully use the safe harbor provisions on their behalf.

I hope I'm not too confusing...

Thx!

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