ARE YOU A “SERVICE PROVIDER?”
IVAN HOFFMAN, B.A., J.D.
In order to fall within the exemption from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”), a party must be a “service provider” as that term is defined in the DMCA. (For a broader view of the liability and related issues read “The Notice and Take Down Provisions of the DMCA”) But the protection that is potentially afforded such service providers comes with some very rigidly constructed legal requirements and providers that fail to comply with those restrictions potentially lose the protection otherwise available. Thus, if you are a service provider you must review your site, your system and how you conduct your business in order to comply otherwise you may find yourself in the midst of a copyright litigation.
So the question is: are you a service provider? It may come as a surprise to some that they are and thus are subject to the restrictions placed on such providers in order to qualify under the DMCA. Without such benefits under the DMCA, the provider must resort to more traditional defenses to claims of infringement such as fair use or that it was not a contributory or vicarious infringer but may find itself embroiled in a litigation that might have been avoided if the provider had complied with the DMCA.
Categories of Service Providers
The DMCA covers 4 categories of service and depending upon what kind of services you provide, the definition of what is a service provider varies. The important idea to keep in mind is that the categories are broad enough to include many organizations and businesses that do not consider themselves to be “providers” and as a result, any parties that even remotely fall within the scope of these definitions should comply and register under the DMCA as a precaution.
These categories are (listed by kind of services provided):
1. Transitory communications (meaning that the provider merely transmits, routs or provides connections for material coming through a system);Under the first category, a service provider is an “entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” This is generally considered to be the definition applicable to providers such as ISP’s and if you or your company provide the actual connections to the Internet for your customers, you probably fall within this category.
2. System caching (meaning that the provider provides temporary storage of such material);
3. Storage of materials at the direction of a user (meaning that the provider is one who hosts sites or runs mailing lists, news groups, chat and the like); and
4. Information location tools (meaning that the provider is a search engine facility).
Under the other 3 categories, the definition of a service provider includes the above kinds of providers as well as “a provider of online services or network access, or the operator of facilities therefor.”
However, it is not sufficient to fall within the definition. In order to qualify under any of the categories, the provider must have adopted and implement a policy of terminating the accounts of subscribers who are “repeat infringers” and the provider must accommodate and not interfere with “standard technical measures” designed to protect copyrighted works. This latter definition refers to the methods of protecting and encrypting copyrighted works .
As to each of the categories, the requirements for obtaining the exclusion vary somewhat based on the nature of the services provided. Some of these points are covered in the above-mentioned article but to make it somewhat easier to read, I have included that discussion here as well.
Under the “transitory communications” category above, the provider is exempt if the provider merely acts as a conduit for the data submitted by another and covers the acts of transmitting, routing or providing connections. What is important here is that the data must be transmitted by the provider by an automatic, technical process without the selection or editing of that material or data. Thus if a provider acts more like a publisher in selecting the material, the exemption provided under this category may not be available.
Under the “system caching” category, the exemption is provided if the material that is cached is not modified and that the provider comply with rules about refreshing the material and providing limited access to that material. The rules, while technical in nature, are in general again about keeping the role of the provider to merely a non-active storage facility without other involvement in the data. One difference in this category is that the provider must remove or block access to any allegedly infringing material from the cache once it has been notified that the same material has been removed or blocked at the originating site.
Under the “storage” exemption, the provider may be exempt if it does not have knowledge of an infringement (or is not aware of facts or circumstances from which infringing activity is apparent) and does not have the right and ability to control the infringing activity or if it does have that right, it does not receive a financial benefit directly attributable to that infringing activity. Further, as above, once it receives a notice of infringement, it must expeditiously take down or block access to the material. Of great importance, however, is that in order to avail itself of this exemption as a host, the provider must have filed with the copyright office a form designating an agent to receive notifications of the claimed infringement. See discussion below. The procedure for handling claims made by copyright proprietors is discussed in the above mentioned article in more detail.
Under the information location tools exemption, in order to qualify the provider must again lack the requisite knowledge or ability to control the material and must take it down upon notification and comply with the designation of agent requirements, much as with the previous limitation.
The Agent Designation
As mentioned above, in order to avail itself of the exemption, in addition to all the other requirements, a service provider must have filed a designation of agent form with the Register of Copyrights as well as posting the same on the service provider’s web site in a publicly accessible location. This form notifies copyright claimants who is designated by the service provider to receive the notices of claimed infringement sent to the service provider about materials residing on their service.
The contents of this form are set forth in federal regulations and all service providers should read those regulations carefully to make certain that their filings comply. In the event any of the information changes, a new form has to be filed.
In an attempt to play catch-up with technology the United States Congress and Senate have passed a number of pieces of legislation designed to protect the rights of copyright and trademark owners in regard to online matters. The DMCA is a complicated act in many ways. If you fall within the parameters of any of the definitions of what is or indeed what may be a service provider, you should consult with experienced legal counsel immediately to avail yourself of the protection of the DMCA and to make certain that you comply with all of its intricate details.
© 2001 Ivan Hoffman