Re: "Service Provider" under DMCA

>>> "S. Martin Keleti" <keleti[_at_]manifesto.com> 10/20 5:58 PM >>>
With regard to the limitations of liability under 17 USC 512, there are two definitions of "service provider" in subdivision (k).

The first one, which applies only to the limitation in subdivision (a), is fairly narrow, and seems to apply mostly to telecommunications providers, such as companies who provide the Internet "backbone" and server space, such as web hosting companies.

The second one, is much broader. Looking at the legislative history, an indexing service, such as Yahoo! is in the definition. How far does it extend? Is a database service such as LEXIS/NEXIS or WESTLAW? An auction site such as eBay? Any website? A "provider of online services or network access" seems somewhat vague. Anyone have any thoughts on this? <<<<<

You're right, the definition applicable to subdivision (a) is narrow. This was an issue in the Napster case; Judge Patel held that Napster was not a "service provider" for purposes of subdivision (a) because the allegedly infringing communications did not travel "through" its system.

My admittedly literal reading of the second definition is that virtually any business that provides Internet access to its employees (or to customers) is a "service provider." Once one goes beyond the provision of network access, I think that if the legislative history expressly includes content sites like Yahoo, it would be difficult to exclude any of the examples you give above.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Tue Oct 24 2000 - 23:30:01 GMT