As internet usage in the workplace has increasingly become the new norm over the past ten years, questions have come to light regarding the legal parameters of using it to distribute and share information and other materials. For instance, though it is perfectly fine for you to lend a music CD to a friend, can you still legally do that if instead you are sending a digital version using your Internet Service Provider (ISP)? One of the grayest legal issues today is under what circumstances, if any, is an ISP responsible for the actions of its customers.
ISP Liability: The Story So Far
When talking about physical products, there is an inherent time and money cost incurred when creating something like a copy of a CD. However, in the digital realm, the waters are muddied, as there is little cost to copying when all you have to do is click a button. Because of this, the United States Congress got involved and passed the Digital Millennium Copyright Act (DMCA). This essentially sided with the ISPs on the issue of customer liability, though there are safeguards in place in fairness to content providers.
Extent of Modern ISP Liability
In specific circumstances, an Internet Service Provider may be held accountable for an incident of copyright infringement by one of its users. Generally speaking, ISP copyright infringement liability can be brought into play in three ways:
- Contributory Infringement: An ISP may be viewed as contributing to an act of infringement if it has knowledge of the illicit activity and assists with it.
- Vicarious Liability: If an ISP has the capacity and right to control the actions of one of its users but stood to benefit from her or his copyright infringement, the ISP is liable.
- Direct Infringement: An infringement incident is referred to as “direct” when an ISP knowingly hosts and financially benefits from material that has been copyrighted.
Just about every case against ISPs relies on the theory of contributory infringement, as vicarious infringement is challenging to prove and direct infringement rarely takes place. However, ISPs must beware vicarious involvement, especially if its terms of service state a right and capacity to regulate customer actions.
ISPs and the DMCA
In most circumstances, ISPs are protected from copyright infringement by the DMCA under its “safe harbor” clause. In order to qualify for this provision, the ISP must:
- Gain no financial benefit as a result of the infringement
- Have no knowledge of the infringement incident in question
- Have a person in place to deal with concerns about copyright infringement
- Obey takedown notices for taking down any copyrighted materials
ISP Responsibility for Customer Obscenity and Defamation
Because Internet Service Providers do not fall under the same category as magazines and newspapers with regard to obscenity and defamation, they are shielded from liability under the Communications Decent Act (CDA). In a precedent-setting case, a political gossip and news website called The Drudge Report and its ISP, AOL, were sued by one of President Clinton’s aides who claimed defamation in a Drudge article that stated the aide had committed spousal abuse in the past. Under the CDA, the suit against AOL was dismissed.
ISP Liability in Other Countries
One kind of conduct from which an ISP might be protected in the United States is not likely to receive the same legal treatment in other nations. Therefore, it is crucial that wherever people have access to your content, the content is in keeping with the unique laws of those countries.
Though it may seem like a hassle to have to take all of these different laws and policies into account, they are ultimately in place to preserve some level of honesty and integrity on the internet. Staying on the right side of the law can have positive effects on your reputation as well.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.