The Digital Millennium Copyright Act and Liability for Hosting and Linking Mark D. Robins Nixon Peabody LLP

The Problem: Involvement in Materials Published by Others Hosting –Web Pages –Bulletin Board Services –Message Board –Chat Rooms –Online listings

The Problem: Involvement in Materials Published by Others (contd) Linking –Automated Search Engines –Manually Compiled Directories –Individual Links –Reference Material

Direct Liability Activities Reserved to Copyright Owner Reproduction Preparing Derivative Works Distribution of Unauthorized Copies Public Display Public Performance

Secondary Liability: The Digital Dance Hall Contributory Infringement –Knowledge or Reason to Know of Infringement –Participation Vicarious Liability –Direct Financial Interest in Infringement –Right and Ability to Control Sony Defense –Device is capable of substantial non-infringing uses

Problems With Secondary Liability Abuse of cease and desist letters Knowledge gained from incidental monitoring Correlating financial benefits to infringing activity Right vs. ability to control

The Proper Regime for Cyberspace Two Lines of Authority –Frena: Direct Infringement –Netcom: Secondary Liability

The DMCA Solution Limit liability to narrowly tailored injunctive relief for: –conduit activities –network caching –storing information at direction of users –referring or linking

User Storage: Protected Conduct User Storage –Storage of infringing material/activity –On providers network –At direction of users

Linking/Referring: Protected Conduct Linking/Referring –Linking or referring users –To site containing infringing material/activity –Through information location tools, including: w directory w index w reference w pointer w hypertext link

Storage/Linking: Conduct Restrictions Contributory Infringement –No actual knowledge of infringing material/activity –Not aware of facts or circumstances from which infringing activity is apparent –Upon obtaining knowledge or awareness, must act expeditiously to take down or disable access –Must act expeditiously to take down or disable access upon notification

Storage/Linking: Conduct Restrictions Vicarious Liability –Must not receive direct financial benefit from infringing activity if –Provider has right and ability to control activity

Other Conditions on Eligibility Designated Agent for Receipt of Notifications –Publish on publicly available area of web site –File with Copyright Office –Name, address, phone number, –Any other information required by Copyright Office

Other Conditions on Eligibility Policy of Terminating Repeat Infringers –Adoption –Reasonable implementation –Policy for termination in appropriate circumstances –Of subscribers and account holders who are repeat infringers

Other Conditions on Eligibility Accommodation of Technology –Must accommodate and not interfere with –Standard technical measures: w Used by copyright owners to identify or protect copyrighted works w Developed pursuant to broad consensus of copyright owners and service providers w Available to any person on reasonable and non- discriminatory terms w No substantial costs or burdens on service providers

Other Conditions on Eligibility Service Provider Definition –provider of online services –provider of network access –operator of facilities for either

Notifications Substantial Compliance: –Physical or electronic signature of person authorized –Identification of work infringed or representative list of multiple works –Identification of accused material/activity/link/reference and information reasonably sufficient to locate –Statement of good faith belief that use is not authorized –Statement that information is accurate and, under penalty of perjury, that complaining party is authorized to act

Notifications Necessary Elements –In writing –To designated agent Defective Notice –If substantial compliance with identification and contact requirements, must take reasonable steps to obtain proper notification –Other defects: Notification does not establish knowledge or awareness

Counter-Notifications Immunity from Take-Down Liability –Must remove or disable access in good faith –May be based on knowledge or awareness or on notification –If based on notification, must give 10 business days notice to target –Must replace or restore if counter-notification received between 10 and 14 business days after receipt of counter- notification unless infringement action filed

Counter-Notifications Counter-Notification Must Contain Substantially: –Physical or electronic signature of subscriber –Identification of material removed or blocked and location prior to removal or blocking –Statement under penalty of perjury of good faith believe that removal or blocking resulted from mistake or misidentification –Name, address, telephone number and consent to jurisdiction of federal district court