Blog , 08 Jan 2020

Should ISPs Worry About Secondary Liability for Copyright Infringement?

Tobias Knecht,

Founder and CEO, Abusix

When the internet first appeared, the technology was revolutionary. For the first time, individuals could send a message to a recipient on the other side of the planet and potentially receive a response within seconds. Businesses could market their goods globally, students had new avenues available for delving deeper into topics, and people could communicate with and share ideas with others on a scale that would have been impossible without the internet. Unfortunately, more than ideas were being shared and are still being shared. Books, movies, television programs, music, and other copyrighted works continue to be posted online. Sometimes, the poster is an innocent individual who has no idea that he or she is committing a crime. More often, however, the poster is a pirate whose only goal is to make money at the expense of the legitimate copyright holder.

In earlier times, ISPs had some protection against being found liable for copyright infringement. Every customer accepted the terms offered by the ISP, and these terms virtually always included a provision that the customer indemnified the ISP from any liability resulting from the customer’s illegal actions. An ISP could defend itself by claiming that it did nothing wrong; the customer was the guilty party. However, the terms typically contained a clause stating that the ISP had the right to remove or block illegal content if the ISP became aware that such content existed. Since a major ISP can have hundreds of thousands or even millions of subscribers, the chances that the ISP would have the resources to review every piece of content uploaded by subscribers are remote. This gave ISPs some defense under the theory of plausible deniability.

Things began to change dramatically with the passage of the Digital Millennium Copyright Act. Under the terms of the DMCA, the ISP could avoid liability if it had no actual knowledge of an act of infringement, had no awareness of circumstances or facts that pointed to infringement, received no direct financial benefit from the infringement, and responded to notices of infringement by acting expeditiously to disable access to or remove the content. Furthermore, the ISP must have a designated agent for receiving notices of infringing content.

The DMCA opened new avenues for copyright holders who sought to sue for infringement. The person committing the infringement was typically difficult to locate, especially if the infringer was based in another country and operated on a large scale. With just a few keystrokes, the offender can adopt a new identity at a different ISP, and the serious offenders seldom have traceable addresses. At the same time, the offenders often have much shallower pockets than a major ISP. Therefore, going after an ISP is easier and more lucrative.

The question arises as to how a copyright holder could legally claim that the ISP is guilty of infringement. The answer is a concept known as secondary liability. Secondary liability can be a contributory liability, meaning that the defendant contributed to the infringement. By merely providing a service that could be used as a platform for infringing content, virtually all ISPs could potentially be found guilty of contributory infringement. Fortunately, ISPs have some protection under the safe harbor provisions of the DMCA. A somewhat riskier type of secondary liability falls under the category of vicarious liability. This implies that the ISP profited from the infringement in some manner. This does not require the ISP to have knowledge of the infringing content. For example, if the ISP receives a portion of the revenue from a banner ad appearing on the page containing the infringing content, the ISP could be found to have profited from the infringement.

Obviously, there are many ways that an ISP could be found guilty of secondary liability for copyright infringement. However, every ISP should be focused less on their potential liability and more focused on being proactive about curbing copyright infringement. It is the right thing to do, but it can also result in happier customers and higher profitability.

At Abusix, our goal is to make the internet safer for everyone. We offer many services for ISPs, so contact us today to learn how we can assist you. You can use our online contact form or send an email to [email protected].

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