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Lesson 12 - Copyright 11:

The Liability of Service Providers

Say you post a copy of WordPerfect on an America Online bulletin board. You're obviously infringing -- you've made a copy of someone else's copyrighted work, and you almost certainly don't have a good fair use defense.

But say the WordPerfect people sue not only you but also America Online. AOL, after all, probably has more money, and it's easier to track down (you might have, for instance, been acting anonymously). Is AOL liable?

Traditionally, copyright infringement has been a "strict liability" offense -- a copier may be liable for an infringement even if he neither knew nor had reason to know that he was acting unlawfully.

The classic example: I write an article for Newsweek that's actually an unauthorized copy of someone else's work, and Newsweek publishes it, with my permission but not the original author's. Newsweek has no way of knowing that it's infringing the original author's work, but if that author sues, Newsweek will still have to pay up. Newsweek may be innocent, but so is the real author: As between them the law prefers that the author be compensated at Newsweek's expense.

Does the same principle make AOL liable? Two federal trial court cases from a few years ago -- Sega v. MAPHIA and Playboy v. Frena - said "yes": A service provider, they said, was liable for infringements on its computers *whether or not* it knew or had reason to know that unauthorized copying was taking place.

But a more recent federal trial court case, Religious Technology Center v. Netcom, took a different view. A service provider, it held, isn't actually the entity doing the "copying." Its computer is making the copy, but it's making it at the *user's* instructions. Thus, under the Netcom approach, only the user is liable under a "strict liability" theory. A service provider is liable only if it's a "contributory infringer" -

  1. if it knew,

  2. OR had reason to know of the infringement. This means that

  3. if someone complains about an infringing post, the service provider must take reasonable steps to determine whether the post is actually an infringement - whether it actually copies someone else's work, whether it's a fair use, and so on -

  4. but until someone complains, the provider generally has no duty to look for potential infringements.

Which of these rule is "the law"? We don't yet know. None of the decisions is binding precedent, because they come from trial courts -- in the U.S. legal system, binding precedents are only set by the courts of appeals. And because of the disagreement, none of the decisions is particularly persuasive precedent, either. (Congress might conceivably pass a special amendment to the Copyright Act to clarify things - some groups are lobbying for this - but it's not at all clear that Congress will act any time soon.)

For now, though, most scholars agree that the Netcom decision is more carefully reasoned than the MAPHIA and Frena decisions, and the academics' view (for whatever it's worth, which isn't much) is that the Netcom model will ultimately win out.


authors:
Larry LessigDavid PostEugene Volokh



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