This month's topic came to the forefront because of the flap over Google's bouncing, and then restoring, anti-Scientology Websites based upon correspondence sent pursuant to the 1998 Digital Millennium Copyright Act (DMSA).
The controversial Church of Scientology, as you may know, is reputed to be at least as litigious as it is religious, if not more so. Apparently, the Church of Scientology sent DMCA notices to Google, complaining that a couple of anti-Scientology sites were in the process of lambasting the Church of Scien-tology, infringing on its copyrights. Google, taking advantage of the DMCAs "safe harbor" provision, disconnected the sites. They were for the most part re-connected, apparently after Google received DMCA counter-notices from the sites.
So what are these notices all about? It is Congress' response to the battle between copyright owners' rights to protect their property and the need to encourage investment in Internet infrastructure by creating a mechanism for ISPs and the like to go forward without fear of being sued out of existence as a result of unwitting copyright infringement.
Outfits that are in the business of transmitting Internet data, hosting Websites, and hosting bulletin boards are the modern-day equivalent of the telephone company. If you transmit a copyrighted song, for example, over a telephone line, you could be infringing on the copyright of the composer and the performer, all with the assistance of the telephone company. If the telephone company knew about this, it theoretically could be liable for copyright infringement. This became more real as telephone companies got into the business of retransmission of cable signals.
As you probably have surmised, phone companies have enough clout that Congress included in the 1976 Copyright Act (which is the one now in effect) a so-called "passive carrier" exemption. It exempted those "whose activities with respect to the secondary transmission [of copyrighted content] consist solely of providing wires, cables, or other communications channels for the use of others" from liability for infringement. The advent of computer bulletin board services, and then the Internet - obviously, neither was contemplated when the 1976 Act was drafted - left the law in utter chaos until the DMCA was enacted in 1998.
The problem was that, like the phone company, ISPs and other, similar service providers were afraid of being dragged into copyright infringement lawsuits to the point of stifling their growth. Once put on notice that one of their customers was infringing a copyright, they faced the specter of being sued. Moreover, what were they to do when caught in the middle of a dispute over copyright ownership? After all, they are the ones with the "deep pockets," so if the guess is wrong about who will eventually prevail in the beef about copyright ownership, they might stand to lose more than the real infringer.
The DMCA's Online Copyright Infringement Liability Limitation Act sought to resolve this problem in a way that keeps the likes of ISPs out of tussles over ownership and infringement of copyrights. Yet it allows owners of rights to protect them from the kind of massive infringement that is facilitated by Internet technology. In a nutshell, it works as follows: The ISP announces to the world where DMCA notices can be sent. If a copyright owner wants to stop the ISP from re-transmitting infringing materials, he or she sends a DMCA notice, in proper form, to the ISP. The ISP can then disconnect the infringer with impunity and, if it does, avoids copyright liability. If whoever is charged with the infringement wants to proclaim innocence, a counter notification can be served. The ISP is then free to stand by while the two slug it out in court, and then abide by the result.
This is not simple. The DMCA enacted a new section 512 of the Copyright Act which, by itself - all 4,147 words of it - is complex enough. Add the fact that, pursuant to the DMCA, the Copyright Office has promulgated regulations - several pages of them which are now at the "proposed" stage - on how an ISP goes about registering its "Agent to Receive Notification of Claimed Infringement," complete with proposed forms. The point here is that this is a process that you should not undertake yourself. If you can benefit from the DMCA's "safe harbor," it is worth retaining a lawyer to help you establish procedures for responding to complaints. If you are a victim of infringement or an alleged infringer and hiring an attorney doesn't make economic sense, it probably isn't worth fighting. Note that the prevailing party in a copyright infringement action - plaintiff or defendant - can recover attorneys fees at the guided discretion of the judge.
So, what is this "safe harbor"? Well, it isn't entirely safe. However, if the ISP, for example, follows the rules set forth in the DMCA and its regulations, it can avoid monetary liability arising from any infringement or for disabling access by an alleged infringer. The ISP can be subject to an injunction - for example, a court order that it not retransmit specified materials. But injunctions must be specific, and the DMCA limits their breadth, so all the ISP need do is read them carefully. That's pretty safe.
The DMCA's "safe harbor" applies to more than just ISPs. The definition of "service provider" includes "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." Thus, a message board where surfers post opinions or information about matters of common interest - football teams, antique sports cars, curling (everyone's favorite Olympic sport), whatever - could qualify for DMCA protection, as could an AVS or a search engine.
The emphasis is on the word "could," because the service provider is required to take certain steps to qualify. That begins with properly designating a person to receive complaints, whose proper name has been designated by the Copyright Office as the "Agent to Receive Notification of Claimed Infringement." The Agent to Receive Notification of Claimed Infringement must file an Agent-to-Receive-Notification-of-Claimed-Infringement application form with the Copyright Office, all according to the DMCA and its regulations. You can check it out at the Library of Congress' Website, www.loc.gov/copyright/onlinesp/. The service provider also is required to post the identity of the Agent to Receive Notification of Claimed Infringement in an appropriately conspicuous place on its site.
The service provider also must adopt a policy for termination of repeat offenders - "a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers" (whatever that means) - and announce that policy appropriately. Compliance with that provision, which is about as clear as mud, is tricky for just that reason. Even acknowledged experts recognize its vagueness.
Once the service provider has done the above, it is anchored in the safe harbor. However, the service provider can run aground if it fails to properly navigate the safe harbor. Upon receiving a notice of infringement in proper form, the service provider must block access to the infringing material. If it does that, it is immune from both an infringement suit by the copyright claimant and a breach-of-contract claim by the alleged infringer.
An infringement claim under the DMCA must be in proper form. The DMCA provides a cookbook for advancing such a claim to a service provider, but the failure to understand the particulars of what is and what is not a claim in proper form can be a recipe for disaster, both for the service provider and for the claimant.
The DMCA also contemplates an objection by the target of the infringement, claiming no infringement or fair use. The beauty of the DMCA is that it allows the service provider to totally extricate itself from those battles; the service provider can just sit on the sidelines and observe. The Act sets forth another particular procedure for the service provider that is confronted with that situation.
As technology marches on, Congress needs to continue to march with it. In this case, Congress was about a decade late. As time goes on, the procedures for benefiting from the DMCA's "safe harbor" provisions will become more clear. Nonetheless, it is a good start.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
