Re: Internet Piracy

On Sun, 13 Jun 1999, C.E. Petit <cepetit[_at_]usa.net> wrote:
>
> Questions:
>
> (a) In situation 1, did Service 1 lose common carrier status when it
> became aware of an ADMITTED infringement using its service? Should
> Service 1 bear liability because it refuses to accept proof other
> than the physical registration certificate, even though registration
> is not required to protect the copyright?

But Service 1 did finally take down the site. The fact that it took several letters, and that their initial position may have been unsupportable doesn't change that. Often, we have to educate a potential adversary in the reality of the law. As long as they see the light before litigation commences, I don't see how you have recoverable damages (even if they waited till after Author 1 sued to take down the site, my sense is that most judges would not award any damages; their attitude would be, probably righthly so, "you got what you wanted.")

> (b) Service 2 has several "flavors" of sites. If Infringer 2 opens an
> infringing site on one of these other "flavors," is Service 2 willfully
> abetting infringement by failing to screen out either Infringer 2 in
> general, or the infringing material specifically?

I say no. My understanding of the law (and I'll admit I haven't gone back and read it), is that a true service provider (differntiating the AOL situation; or was it Compuserve or Prodigy?) isn't, and shouldn't be, liable for violation by their customers, unless and until that particular violation is brought to their attention. The idea is that service providers can't, and shouldn't have to, screen the web sites of their customers. As long as the service provider kills the infringing site after a complaint is filed, I think the service provider is free of liability.

I suppose a different situation could arise if, say, a service provider marketed itself as a haven for copyright infringers, or if, like AOL, it actually did review the content of sites it services (I believe AOL was in the context of chat rooms). But if an infringer just signs up for different flavors of service offered by the provider, I don't see an obligation to review content.

Patrick W. Begos
Begos & Horgan, LLP
NY and CT
begos[_at_]ibm.net Received on Mon Jun 14 1999 - 13:02:51 GMT