Background

Under current law, ISPs can be held liable for their customers’ infringement under theories of secondary liability. Before 1998, the basis for this liability was grounded in copyright law’s contributory and vicarious liability doctrines. However, ISPs complained that the courts did not consistently apply these doctrines. As a result, while some courts exempted ISPs from liability for their customers’ acts of infringement, others held ISPs liable even when they had no knowledge of the infringements. At the same time, the music and movie industries wanted ISPs to bear at least some responsibility for their customers’ infringements. The Digital Millennium Copyright Act (DMCA) was passed in 1998 to address these concerns. It provided safe harbors from secondary liability to ISPs and online services that met certain conditions. These safe harbor provisions of the DMCA are contained in section 512 of the copyright statute.

Under Section 512, ISPs – companies that provide access to the Internet - are exempt from infringement liability, provided that the ISP in question maintains a policy of terminating access for repeat infringers. The idea is that an ISP, like AT&T, Verizon, or Earthlink, is a passive conduit that cannot control the information that flows on its network. Online Service Providers (OSPs) – which range from hosting services such as YouTube to search engines such as Google Search, message boards and others - are also exempted from liability, as long as they take down infringing material upon notice from the copyright owner. If they do not meet these takedown obligations the OSPs can face lawsuits for copyright infringement.