Copyright and trademark infringement risks were once lower for movie studios, book publishers, and record companies. They understood the producers, shipment amounts, and how many products remained unsold. Though piracy still existed, the pirates had to find rogue manufacturers and invest heavily to physically copy books, movies, or recordings before the internet emerged.
With the internet’s advent, circumventing copyright laws became easier and more profitable. Copying and distributing digital works cost almost nothing, and millions of copies could reach consumers within minutes.
As a result, companies producing intellectual property (IP), such as films, books, and other products, began losing revenue. This loss affected not only the companies but also authors, producers, actors, and others compensated through related royalties.
In response, countries have banded together to enforce intellectual property laws. The Digital Millennium Copyright Act (DMCA) is the leading IP law in the USA. No matter the country, IP laws protect network providers (ISPs and hosting providers) while supporting legitimate copyright holders who follow a few simple rules. Learn more about how copyright and trademark theft affects service providers.
Network Provider Liability for Copyright Infringement
Network Providers (ISPs or Hosting Providers) could face liability for copyright infringement committed by their users in three circumstances:
- If the Network Provider knowingly hosts copyrighted content and directly benefits from it financially, they may be guilty of direct infringement.
- If the Network Provider knows about the infringing activity and materially contributes to or assists with the infringement, they may be guilty of contributory infringement.
- If the Network Provider benefits financially from the infringement and has the ability and control to manage users, they may be guilty of vicarious liability.
Contributory infringement is more common than direct infringement. Proving vicarious infringement can be challenging, as plaintiffs must demonstrate the network provider’s ability to control users. Some ISPs have been caught due to their terms of service stating they could terminate accounts for violations, including copyright infringement, but failing to act.
Safe Harbor for Network Providers
The DMCA (Digital Millennium Copyright Act) provides a safe harbor provision that can protect a network provider (ISP or hosting provider) from liability for copyright infringement. Other countries have similar provisions. Here are the conditions:
- The network provider has no direct knowledge or substantial reason to suspect infringement.
- The network provider is not receiving a financial benefit from the infringement.
- The network provider complies with any takedown notice provisions for removing copyrighted material sent by the copyright owner or an authorized agent.
Recent lawsuits have shown that the safe harbor provision is less secure. Network providers must follow the DMCA or their country’s laws verbatim to ensure safe harbor protection.
Three Actions to Prevent Network Providers from Being Held Liable for Copyright and Trademark Infringement
To protect your network from potential liability, you must acknowledge that some users may violate intellectual property laws. Here are three ways to shield yourself:
1. Adopt and communicate a copyright infringement policy to your users.
Display the policy prominently on your website or include it in your terms of use. The policy should explain that you’ll respond promptly, terminate accounts, or ban users who infringe repeatedly.
2. Adopt and communicate a copyright infringement notification policy and process.
Display the notification policy on your website in an easy-to-locate place. Provide details on the process that notices must follow, including your abuse address [email protected].
Since many automated reporters will use the abuse address you registered with your RIR, ensure this is your copyright address. Also, request that reports use a standardized format, such as XARF by SMTP with the Copyright Schema.
If you are a hosting provider, offer a web form for individuals filing copyright claims. Configure the form to use the XARF JSON schema to make storing all report information easier.
Regardless of whether a report is filed by email or via a web form, include the following in your posted policy:
- Identification of the infringed works
- An electronic or physical signature from someone authorized by the copyright owner to file the claim
- The complaining party’s contact information: a statement that they believe in good faith that the copyright owner did not authorize the use of the material, and that the information provided is accurate
3. Process infringement reports immediately and automatically.
Once you receive a copyright infringement report, verify that the notice meets all requirements.
If the infringing material is hosted on a website, typically at a hosting provider, disable access to the material and notify your subscriber or user of the removal so they can file a counter-notice. If you receive a valid counter-notice, notify the copyright owner and include a copy of the user’s counter-claim.
If the infringement involves peer-to-peer transfers, typical of access providers, notify the subscriber and warn them about the prevalence of malware with peer-to-peer transfers. Include your five- or six-strikes policy and a link to your terms of use, stating that repeat offenses will result in termination of their service.
Digital piracy is a persistent problem, and network providers must comply with all DMCA provisions to qualify for safe harbor protections. Automation can help.
Abusix’s AbuseHQ can dramatically improve efficiency in processing reports and reduce risks. Our customers have reported that 100% of all reports to the abuse@ address are processed and acted upon, making their teams more effective and efficient.
If you’re serious about reducing your potential liability, contact us at [email protected] today to learn more about how we can help you.