Re: Major Labels v. Backbones

[Jeff Ogden <jogden () 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.