Re: Major Labels v. Backbones

[Jeff Ogden <jogden () merit edu>]

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 () merit edu
> From: Jeff Ogden <jogden () merit edu>
> Subject: Re: Major Labels v. Backbones
> Sender: owner-nanog () 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 () 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.