This may be the last post in my series exploring how the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) will interact with various elements of copyright law and related statutes. From now on I'll be concentrating on specific examples of how the INDUCE Act can be abused: Hatch's Hit List.
I've already discussed how the INDUCE Act will substantially broaden the materials that ISPs must take down in response to a request by copyright holders (The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA). Today, I'm going to look at the other half of those provisions and see whether or not ISPs will still be protected by the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Read on...
Basically, and here once again, I'll cut-n-paste from Chilling Effects's website on section 512 (DMCA Safe Harbor Provisions:
Section 512 of the Digital Millennium Copyright Act (DMCA) protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder's complaint.
In order to qualify for safe harbor protection, an OSP must:
- have no knowledge of, or financial benefit from, the infringing activity
- provide proper notification of its policies to its subscribers
- set up an agent to deal with copyright complaints
Anyway, section 512 protects ISPs from some liability for the infringements of their customers so long as they follow certain rules. The extent of this protection is not quite known. Though most commentators believe the protection extends to secondary liability ("A service provider shall not be liable for monetary relief") the district court in
A&M Records v. Napster [PDF] didn't agree. The appeals court in the Napster decision didn't reach that issue.
Either way, since the INDUCE Act doesn't specifically overrule section 512, a straight-forward reading would indicate that as long as you already have protection under section 512, you are still protected under the INDUCE Act. The INDUCE Act expands copyright liability, but the safe harbor doesn't change. That seems to me the best reading of how the two laws interact.
However, the real world might be slightly messier. Undoubtedly, if the INDUCE Act is passed, someone will claim that it overrules section 512. One court has already been persuaded that section 512 doesn't apply to secondary liability. Other courts may conclude that the INDUCE Act is further evidence that Congress didn't want to protect ISPs from secondary liability under Section 512.
I think there is enough uncertainty, that were I advising an ISP, I would tell them to make sure this law doesn't pass.
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
