| - ISP Indirect Copyright Liability
The DMCA shields ISPs from indirect liability in connection with the conduct of third parties, such as cybersquatters and bulletin board operators and/or users. Under the DMCA, where the ISP has adopted and informed its subscribers of a policy precluding infringement activities, and its Internet service activity fits within one of the Act's four safe harbors, should an individual subscriber engage in infringing conduct, the ISP will be shielded from indirect liability, provided that i) the ISP was initially unaware of the infringing conduct, and ii) upon receiving notice thereof, promptly removes the infringing material, and if necessary, disconnects the subscriber. See Title II of the DMCA, The Online Copyright Infringement Liability Limitation Act, 17 U.S.C. Section 512; see also ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir. 2001); In re subpoena to University of North Carolina at Chapel Hill, 367 F. Supp. 2d 945, 948 (M.D.N.C. 2005); Perfect 10, Inc., v. CCBill, LLC, 2007 U.S. App. LEXIS 7238 at *6 (9th Cir.) ("a service provider 'implements' [an anti-infringement] policy if it has a working notification system, a procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent copyright owners from collecting information needed to issue such notifications.") But cf. Ellison v. Robertson, 357 F. 3d 1072, 1075-80 (9th Cir. 2004) (failure to provide updated infringement notification email address creates an issue of fact as to whether ISP has implemented an anti-infringement policy); In re Aimster, 252 F. Supp. 2d 634, 659 (N.D. Ill. 2002) (anti-infringement policy is not effectively implemented if service provider actively blocks collection of information).
The DMCA also excludes certain kinds of automatic functions, such as caching, from actionable conduct. See e.g. Parker v. Google, Inc, 422 F. Supp. 2d 492, 498 (E.D. Pa. 2006); Perfect 10, Inc., v. CCBill, LLC, 2007 U.S. App. LEXIS 7238 at *26 (9th Cir.) ("intervening computers provide transient connections among users. The Internet as we know it simply cannot exist if those intervening computers must block indirectly infringing content.")
As discussed above, however, copyright content owners continue to seek to limit these protections, and to place as much responsibility as possible on ISPs for policing their subscribers. See e.g. In re Verizon Internet Services, Inc., 2003 U.S. Dist. LEXIS 681, *33 (D. D.C.) (discussing statutory requirements regarding ISP compliance with information subpoenas: "Congress not only sought to limit the liability of service providers under the DMCA, but also intended to assist copyright owners in protecting their copyrights. The legislative history makes clear that in enacting the DMCA, Congress attempted to balance the liability protections for service providers with the need for broad protection of copyrights on the Internet."); see also Ellison v. Robertson, 357 F. 3d 1072, 1076 (9th Cir. 2004); ALS Scan, Inc., v. Remarq Communities, Inc. 239 F. 3d 619 (4th Cir. 2001).
In accordance with this strategy, content owners have recently argued that the notice and subpoena provisions of the DMCA, which enable content owners to determine the identities of individual infringers, apply to both "conduit" ISPs (who provide Internet access but do store or maintain end-user transmitted material) as well as to ISPs who actually store such material (such as on a blog or an electronic bulletin board.) To date, however, the courts which have addressed the issue have rejected such arguments, in part because of the wording of the statute, and in part because as mere Internet conduits, such ISPs have no material stored on their servers that can be removed from the Internet. See In re Supoena to University of North Carolina at Chapel Hill, 367 F. Supp. 2d 945, 952-55 (M.D.N.C. 2005); see also In re Verizon Internet Services, Inc., 351 F.3d 1229, 1238 (2005); In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 781 (8th Cir. 2005) (limiting ISP's subscriber subpoena obligations to storage ISPs, who can actually locate and remove infringing material.) Whether or not this construction of the DMCA is consistent with actual Congressional intent, these decisions effectively immunize conduit ISPs from indirect infringement liability. See also Perfect 10, Inc., v. CCBill, LLC, 2007 U.S. App. LEXIS 7238 at *9-10, *16 (9th Cir.) (noting that ISPs are not required to police for repeat offenders. "The DMCA notification procedures place the burden of policing copyright infringement - identifying the potentially infringing material and adequately documenting infringement - squarely on the owners of the copyright.")
-Unauthorized Copyright Alteration
The DMCA also prohibits the removal or alteration of copyright ownership information from copyrighted works, or the knowing distribution of works as to which such information has been altered or removed. One of the first cases decided under the DMCA, is Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, modified, 336 F.3d 811 (9th Cir. 2003), in which the court addressed conduct that gave rise to allegations of direct copyright infringement, indirect infringement via hyper linking, and also violations of the "no alteration of copyright ownership information" provisions of the DMCA. The defendant therein had compiled a database of more than two million "thumbnail images", that is, reduced copies of images that appeared on other web sites. By utilizing defendant's search engine, the Arriba Vista Image Searcher, a user would retrieve a visual index of the thumbnail images. By clicking on the thumbnail image, the user would automatically link to the web site where the image actually resided, and would then see the full size version of the image, and either the originating web site's web address or the actual originating web page.
Plaintiff, the owner of one such originating web site that contained copyrighted images, claimed that defendant's unauthorized thumbnail images, and also the unauthorized hyper link, constituted direct copyright infringement. In addition, plaintiff argued that because the thumbnail images did not reproduce the attendant copyright notices from the originating web site, they were also in violation of the DMCA.
Although the court found that the unauthorized thumbnail images constituted copyright infringement, it nonetheless held them permissible under the Fair Use Doctrine.
There is no dispute Defendant operates its Web site for commercial purposes. Plaintiff's images, however, did not represent a significant element of that commerce, nor were they exploited in any special way. They were reproduced as a result of Defendant's generally indiscriminate method of gathering images... so it can provide more complete results to the users of its search engine... While the use here was commercial, it was also of a somewhat more incidental and less exploitative nature than more traditional types of 'commercial use'.
77 F. Supp. 2d at 1119. But cf. Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 847 (CD. Ca. 2006) (finding that the creation of "thumbnails" that are almost the same size as the originals is not a Fair Use: "Merely because Google's thumbnails are not cropped does not necessarily make them exact copies of P10's images, but the record currently before the Court does suggest that the thumbnails here closely approximate, a key function of P10's full-size originals, at least to the extent that viewers of P10's photos of nude women pay little attention to fine details."
As for the hyper link, although the court found this conduct more troublesome in that "[i]t allowed users to view (and potentially download) full-size images without necessarily viewing the rest of the originating Web page", the court held that its beneficial, transformative nature rendered it too a Fair Use:
The most significant factor favoring Defendant is the transformative nature of its use of Plaintiff's images....Plaintiff's photographs are artistic works used for illustrative purposes. Defendant's visual search engine is designed to catalog and improve access to images on the Internet....The character of the thumbnail index is not esthetic, but functional; its purpose is not to be artistic, but to be comprehensive.
77 F. Supp. 2d at 1119. See also Ticketmaster v. Tickets.com, 2000 U.S. Dist. LEXIS 4553 (CD. Cal.) (unauthorized hyper link does not constitute per se infringement).
Finally, the court found that because the defendant included copyright warnings regarding use of the thumbnail images on its site, and that in as much as the thumbnail hyper link connected users to the originating web site's web address or web page, and (ultimately) to the copyright owner's copyright information, defendant had adequately provided the appropriate copyright ownership information. As one of the first invocations of the DMCA (and probably because it did not appear that the plaintiff specifically intended to mislead users as to the copyright ownership of the images) the court was likely lenient in its disposition of the copyright information alteration claim. Removal of copyright information in connection with Internet dissemination today would likely result in a more stringent application of the statute.
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