Slide 1: ISP Liability for Subscriber Infringements
ISP Liability for Subscriber Infringements By Christopher Sabec
Slide 2: Overview
Overview The bad news: Peer-to-peer piracy is 42% of all North American upload traffic. The good news: US Law makes piracy illegal Nobody is legally entitled to participate in piracy with impunity -- not even ISPs. The great news: Rights holders can hold ISPs accountable.
Slide 3: Absent the DMCA, ISPs Risk 3rd Party Liability
Absent the DMCA, ISPs Risk 3rd Party Liability Fonovisa v. Cherry Auction Cherry Auction ran a swap meet in Fresno. Vendors paid a fee in exchange for booth space. Cherry Auction repeatedly leased space to vendors who sold counterfeit recordings. Fonovisa repeatedly warned--and eventually sued-- Che
Slide 4: Fonovisa's Two Tests
Fonovisa's Two Tests Vicarious Liability 2 prong test Be in a position to stop the infringement. Derive a financial benefit from the infringer. Contributory Liability - 2 prong test Have knowledge of the infringement. Materially contribute to the infringement.
Slide 5: Enter the DMCA
Enter the DMCA Faced with the specter of 3 party liability, ISPs went to Congress. Sought a shield from liability. ISPs hit the jackpot with the 4 DMCA safe harbors. Note well: ISPs knew they had liability. You don't hire lobbyists and wage a legislative battle from exemption from liability you don'
Slide 6: The Four Safe Harbors
17 U.S. Code § 512 (a) through (d) The Four Safe Harbors DMCA safe harbors provide protection from 3" party liability for: = Transitory Digital Network Communications (Transmitting); System Caching (Caching); Information Residing on Systems or Networks at the Direction of Users (Storing); . Informat
Slide 7: The Four Safe Harbors: Conduits and Hosting
17 U.S. Code § 512 (a) through (d) The Four Safe Harbors Section 512(a) Service Providers -- "Conduits" ISPs Law has yet to develop. Section 512(c) Service Providers -- "Hosting Services" YouTube, MP3tunes, Corbis, etc. Where all the current law resides. ISPs favorite straw man: "We don't host, so t
Slide 8: Safe Harbors Are Not Unconditional
Safe Harbors Are Not Unconditional Before a service provider can take advantage of any of the four safe harbors, it must meet the requirements of Section 512(i). This requirement is a prerequisite for every DMCA safe harbor and is a fundamental safeguard for copyright owners. "Purpose of the conditi
Slide 9: Conditions for Safe Harbor Eligibility
17 U.S. Code § 512(i) Conditions for Safe Harbor Eligibility (i) Conditions for Eligibility. (1) Accommodation of technology.— The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and info
Slide 10: Two Conditions
Two Conditions Standard Technical Measures: Refers to means by which copyright owners may identify or protect copyrighted works. ISPs can't thwart efforts to police copyrights. Repeat Infringer Policy: Adopt a policy that terminates in appropriate circumstances subscribers who are repeat infringers;
Slide 11: Compliant Repeat Infringer Policies
Compliant Repeat Infringer Policies In Corbis v. Amazon, the Court describes a properly adopted ISP infringement policy as one that: Conveys to subscribers that there is a realistic threat of losing “their access to the internet” as a result of repeated infringement. Does not tolerate flagrant or bl
Slide 12: What is a Repeat Infringer?
What is a Repeat Infringer? ISPs must provide for termination in appropriate circumstances of "repeat infringers". What is a repeat infringer? Not really defined in the statute. The plain language of the statute would support an interpretation that a repeat infringer is someone who infringes repeate
Slide 13: Why Does This Matter?
Why Does This Matter? Peer-to-peer piracy is 42% of all North American upload traffic! Includes movies, video games, software, and books. Forecast that this to grow in the by 170% by 2016. Currently tracking more than 500,000 subscribers on the top 5 ISPs: Who are blatantly and repeatedly distributi
Slide 14: What is the Solution?
What is the Solution? We want to encourage the rights holders to hold ISPs accountable for repeat infringement of their content by seeking termination of repeat infringers. There is misconception that the ISPs won’t do this, but we have found that many of them will. Believe it or not, some ISPs even
Slide 15: Thank you...
Thank you... Christopher Sabec CEO (RIGHTSCORP cjsabec@rightscorp.com (310) 751-7511