On Tue, 15 Jun 1999, Matthew Cockman <mcockman[_at_]aitcom.net> wrote:
>
> The Digital Millenium Copyright Act (DMCA) has specific
> notice/counter-notice requirements, as well as take-down/put-up
> provisions. Absent compliance with the act, the ISP (who really is
> in the best position to prevent unwanted dissemination of the work),
> subjects itself to secondary liability for the infringement -- much
> deeper pockets I suspect, than the original infringer. Reading the
> act, it looks as if the form of the notice is as important as
> substance.
>
> Additionally, the notice/counter-notice provisions allow the potential
> litigants to learn proper identification, so that service of process
> may be accomplished.
>
> As one of the world's largest IPPs, this is an issue we deal with on
> almost a daily basis. Every IPP/ISP is required by the DMCA to post
> prominently on their site the name of the person designated as the
> agent to receive infringement notices. That info is also required to
> be filed with the U.S. Copyright Office, and those filings are
> available on their website.
>
> Hope this helps in your analysis.
Hi folks,
Just a quick comment to add to the posting reproduced below.
There's no question that the DMCA has great relevance to this situation, and that compliance with the DMCA safe harbor take-down/put back provisions insulates the ISP from secondary liability. However, failure to comply with the DMCA does not necessarily mean that the ISP will then be held secondarily liable. As I understand it, the DMCA does not settle the question of whether or when an service provider is vicariously or contributorily liable. Thus, failure to comply with the DMCA safe harbor provisions exposes an ISP to liability only if other law would impose such liability.
I recognize that the comment below might be read consistently with the foregoing. "Subjects itself to secondary liability" might have been intended to mean "subjects itself to whatever liability may or may not otherwise exist." However, I add my 2 cents because I think it's vitally important to realize that the underlying law of vicarious and contributory liability of ISPs for user infringement remains unsettled. It would be a mistake to jump the gun and assume the existence of liability that the DMCA itself declines to impose.
Fred
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