Laura A. Conte
Cyberspace & Internet Law
October 12, 2007
This Week (Week 8): Copyright Liability for
Intermediaries
1. What responsibility, if any should intermediates have for copyright infringement
online?
By definition, “intermediate” is defined as “being in between – lying or occurring
between two different forms, states, points or extremes. Intermediates are defined as
“something between two other things, to act as a go-between or mediator between two or
more people of groups.” The issue is can an intermediate be held responsible? Can the
person or thing that is acting as the mediator or go-between be held accountable for
copyright infringements that occur between the two independent parties? Encarta
Dictionary.
This question is a very complex one. When looking at whether intermediates should bear
some or even all the responsibility for allowing copyright material to be passed over the
Internet you first have to determine what type of intermediate you are speaking about.
Not all intermediates are alike nor do they perform the same way.
According to an essay out of the University Of Texas School Of Law, “The Promise of
Internet Intermediary Liability”, they explain that in the early days, the internet witnessed
many broad claims about how the internet would lead to widespread disintermediation as
transacting parties gained the ability to deal directly with each other. The reality,
however, has been precisely the contrary. At a basic level, the technology of the internet
requires the insertion of intermediaries between interacting parties in two ways. First, for
all interactions, over the internet, the communication necessarily involved the internet
itself, as well as the parties necessary to facilitate the particular communication. More
importantly commercial interactions on the internet require the use of other
intermediaries, chiefly payment intermediaries, ISPs which are necessary at every state of
internet transactions, and auction intermediaries. The Promise of Internet Intermediary
Liability, The University of Texas Law School, Ronald Mann and Seth Belzly. (2005)
When looking at liability, whether for copyright infringement or other illegalities,
intermediaries have been put in the legal arena as the biggest players the liability blame
game and remedy aspect for these issues. According to the assigned reading essay,
“Holding Internet Service Providers Accountable”, they explain that internet service
providers are today largely immune from liability for their role in the creation and
propagation of bad behavior and illegal behavior. The essay aimed to challenge the
trend in courts and Congress away from liability and toward complete immunity for
Internet service providers. They believe that immunity is difficult to defend on policy
grounds and sharply inconsistent with conventional tort law principles. Internet service
providers control the gateway through which Internet pests enter and reenter the public
computer system. They feel they should therefore bear some responsibility for stopping
these pests before they spread and for helping to identify individuals who originate
malicious code in the first place. Holding Internet Service Providers Accountable,
Lichtman and Posner (2004).
They are concerned that the perpetrators of cyber-crime are too often beyond the
effective reach of law, both because these individuals are almost impossible to track, and
because even when identified these individuals usually lack the resources necessary to
pay for the damage they caused. Thus in this essay, they argue that attempts at direct
intervention must be supplemented by a legal rule that brings Internet service providers
(ISPs) into the chain of responsibility. They state that ISPs should to some degree be held
accountable when their subscribers originate a bad behavior on the Internet. Id.
The authors of this essay suggest that liability should be held to the same rules as
comparative and contributory negligence. They state that indirect liability is said to
attach in instances where the law holds one party liable for wrongs committed to another
such as vicarious liability in instances directly related to copyright infringements. They
compare liability to an employer/employee relationship and feel that ISPs and
intermediaries should be held to the same tort law of liability. They state that the idea
behind the control rationale is to encourage private parties to develop mechanisms, and
adopt organizational structures that effectively allow for the control of possible bad
actors. Allowing parties to hide from this obligation through some voluntary limitation
threatens to undermine that logic, in essence encouraging a potentially liable party to
knowingly and intentionally stick its head in the sand. Id.
In contrast to the essay, “Holding the Service Providers Accountable”, which look at the
traditional principles of tort law and feel it can be used to impose a greater level of
responsibility, the authors of “The Promise of Internet Intermediary Liability” take a
different tack. They reject the tort law responsibility view as they believe the
underpinnings of traditional tort law are not as useful a device for establishing
appropriate standards of conduct as the more direct and contextual focus on the costs and
benefits of intermediary liability. They feel tort law notions of fault necessarily divert
attention to subjective normative questions of blame and responsibility that more
properly should focus on questions of effective regulatory design. The Promise of
Internet Intermediary Liability, The University of Texas Law School, Ronald Mann and
Seth Belzly. (2005)
When looking at peer to peer intermediaries it is hard not to analogize some
intermediaries similar to an express carrier, such as Federal Express. Intermediaries that
state they keep no record or data or no server access as to the contents of material shared
over their services between two parties can be compared for the most part to an express
carrier. If you give Federal Express a package and tell them to expeditiously deliver this
package to another entity, we would not and could not hold Federal Express vicariously
liable for any illegal material in the package as they have no knowledge of what is inside
that package. What we would expect from Federal Express is tracking information, the
“to and from” information that we can obtain in order to pursue the individuals
transacting with each other in an illegal capacity. Same would be true for intermediaries
that currently do not hold the data or track the services being shared.
It seems after reading the essays and listening to lecture, when dealing with the peer to
peer intermediaries, they seem to be protected from the “what I don’t know can’t hurt
me” rule. Although I do understand this concept as noted in the above analogy relative to
the express provider, this may not be the best defense if we are to move forward on the
Internet.
For peer to peer intermediaries, and obviously for other intermediaries such as ISPs and
auction intermediaries, we need to hold some accountability so we can maintain that
sense of protection that keeps coming up week after week.
There has to be some middle ground and some serious analysis on a case by case basis as
to who should be responsible and when and under what statutory scheme or tort law. I
am not convinced as the authors of the essay, “Holding the Service Providers
Accountable” that just because the individuals engaging in illegal behavior such as
copyright infringement may not be in a financial position to remedy the victim with
damages then the fault should fall on the Internet Service Provider. This deep pocket
approach is only going deflect this real issue of identifying the true perpetrators and
prosecuting them correctly.
We need to come up with elements for copyright infringements. Like the elements in
criminal law, there is intent, knowingly and purposefully, maliciously, these elements
should be similar to cyber illegalities and whether intermediaries should bear the
responsibility. Most companies and/or authors are looking for damages when their
copyrighted material has been infringed upon. However, the monetary responsibility can
not be the driving force behind the responsibility target on this issue. Just because you
may want to make the entity with the most money culpable or vicariously liable does not
mean that will eradicate the illegal behavior.
The U.S. Code on 512 Limitations on liability relating to material online seems to be
trying to accomplish just that. They provide that, service providers shall not be liable for
monetary relief, or injunctive or other equitable relief for infringement of copyrighted by
reasons of the providers’ transmitting, routing or providing connection for material
through a system or network and transient storage of that material if it falls within the
criteria outlined. It goes on to outline in Subsection (d) the elements needed to not have
immunity. It states, a service provider shall not be liable if the service provider:
1 (a) does not have actual knowledge that the material or activity is infringing; (b) in the
absence s of such actual knowledge is not aware of facts or circumstances from which
infringing activity is apparent or (c) upon obtaining such knowledge or awareness, acts
expeditiously to remove or disable access to the material; (2) does not receive financial
benefit from the infringing activity…(3) … responds expeditiously to remove.
U.S. Code Title 17, 512 Limitations on Liability relating to material online, Cornell
University Law School, (2007).
http://assembler.law.cornell.edu/uscode/html/uscode17/usc_sec_17_0000512----000-
html.
The issue with the U.S. Code is pure immunity. This is where again, going from one
extreme to the other is not going to help technology or our continued freedom on the
Internet. You have the authors like Lichtman and Posner suggesting that we should hold
intermediaries wholly responsible in some instances for what is shared on their sites.
They want to use traditional tort law to remedy the victims. Holding every intermediary
responsible for material that is on their sites is not going to work. However giving them
clear statutory immunity is not the way to go either.
As stated in our lecture this week, there has to be some middle ground of responsibility.
Limitations on liability, notification and a take down approach seems to be the way to
analyze each case to balance intellectual property rights.
Like our common carriers such as the post office or express carriers such as federal
express, it is important not to hold ISPs liable simply because they cache material For
legal reasons we need that caching.
If ISPs and other intermediaries are informed of copyrighted infringements and they are
given a reasonable time to verify that information, then they need to take down that site
and relinquish all information surrounding any “to and from” addresses they have stored
to find and prosecute the perpetrator. If they are not expeditious in their take down or
outright refuse to take down once proof of the infringement then responsibility should be
held to that intermediary.
We need to look at regulation, analyze how these intermediaries are conducting their
business. Define clear criteria on what they should store and how they should store it. If
there is an infringement what they need to do at the very least is to stop the infringement
from happening. If they can show steps towards protecting the entity this will limit their
liability, not erase it. Each case needs to be look at individually, it is apparent that we are
not able to always decide these issues with the black letter of law. Obtaining guidance
from our legislature, decisions handed down and coming together to balance out the
responsibility seems to be a better approach than total liability or total immunity.
You are very thorough in your approach and logically tackle the question asked.
However, if there is any constructive criticism that I can give, it’s that you would be
better served to get to the point of your answer more quickly – perhaps in the first
paragraph. Think of your thesis as the spice of your answer.
2. What is the most efficient way to enforce copyrights online?
Everyone needs to be held to some enforcement of copyrighted material online. It should
start with the individual or individuals with the copyrighted material. They should be
mindful and diligent to self regulate the activities online and be mindful that at anytime
their material may be pirated. They have to be certain that they have protected themselves
via technological and contractual ways to be certain that their material should not be
pirated and used for illegal purposes. If they obtain to correct technological protections,
such as encryption and before putting their work “out there” be certain that the publishers
of those works are strongly contractually bound by any infringement, this will, at the very
least, provide the foundation for protection and remedy if infringement occurs.
Also, just as in the physical world, the cyber world must be policed to make sure no one
has infringed on your rights. This “cyber policing” in reality should occur both with the
private individual and/or company and the service providers. They should be working in
tandem to audit and police the individuals utilizing their services and under what
conditions they are utilizing the services. Service providers should no longer be able to
“stick their heads in the sand” and use the excuse of blindness to what is on their sites to
hide behind as protection. Service providers and intermediaries need to take their heads
out of the sand, realize that their businesses are susceptible to illegal and bad behavior
that needs to be monitored by them.
Next, the ISPs and intermediaries must bear some responsibility to maintain an Internet
They should and must maintain records that store a digital address of anyone who is
entering their sites. This will allow law enforcement, investigators alike to trace an
individual engaging in any illegality on the Internet. This will allow proper prosecution to
the correct individual(s) infringing on the copyrighted material.
According to the essay, “Holding Internet Service Providers Accountable” state that
indirect liability should be attractive in cases where the potentially liable party is in a
good position to detect or deter the relevant bad act; and second, indirect liability should
be attractive in cases where it can encourage the liable party to internalize some
significant negative externality unavoidably associated with its activities. Holding
Internet Service Providers Accountable, Lichtman and Posner (2004).
Regulations need to be clearly in place that will harshly penalize the activity without
giving anyone or any entity full pardons for the activity. Partial liabilities, contributory
liabilities or levies as discussed in this weeks lecture are some ideas that can be carried d
down by legislation without full immunity for anyone.
Lastly, as suggested in this weeks lecture, a levy system may be an alternative to
protecting copyrighted material. One would compensate content owners for sharing
between individuals. Through this system free technological developments could be
made available and provide content owners with compensations. These levies would not
be to compensation content owners for unlawful use. This system of levies would be
inconsistent with copyrighted legislation; however if the scheme would show progress,
legislation could be amended to include such language. Week 8, Copyright Liability for
Intermediaries, Professor Cheesman. (2007)
This is a good answer making good use of the assigned material. A better answer,
however, would have included a strong thesis. I sense some ambivalence about the thesis
in your answer. Perhaps you are hedging a bit too much. Go ahead. Take a risk. Bite the
bullet. Choose your thesis and see where it takes you.
a. What are the pros?
According to the essay, “Holding Internet Service Providers Accountable” the authors
state that indirect liability should be attractive in cases where the potentially liable party
is in a good position to detect or deter the relevant bad act; and second, indirect liability
should be attractive in cases where it can encourage the liable party to internalize some
significant negative externality unavoidably associated with its activities. Holding
Internet Service Providers Accountable, Lichtman and Posner (2004).
The idea behind the control rationale is to encourage private parties to develop
mechanisms and adopt organizational structures that effectively allow for the control of
possible bad actors. Allowing parties to hide fro this obligation through some voluntary
limitation threatens to undermine that logic, in essence encouraging a potentially liable
party to knowingly and intentionally stick its head in the sand. Id.
Accordingly, they find one solution as being a minimally intrusive form which involves
recording subscriber’s data stream and storing that information ideally in encrypted form
for a period of time. If authorities responding to independent information then contact
the ISP and present necessary search warrants and alike, the ISP would provide the
authorities with this record. Id.
ISPs are in a good position to deter the various acts associated with cyber-insecurity and
perhaps secondarily because liability would force ISPs to internalize some of the negative
externalities they impose; and that any indirect liability regime needs to be created by law
rather than by contract both because many of the relevant bad actors are beyond the read
of law. Id.
The pros to all of the suggestions via indirect liability, cyber-policing, strong contract
language, regulations, levies and protection via technological advances is it shows that
we are attempting to balance the responsibility, maintain the freedom of the Internet, and
work together to eradicate or limit the bad behavior that can occur. The main focus
should not be on penalties but on encouraging the private sectors and intermediaries to
come up with a protection scheme that works where we can co-exist and feel a sense of
security.
b. What are the cons?
According to the essay, Holding Service Providers Accountable, Lichtman and Posner
state that there would be two primary objections when holding intermediaries responsible
for protecting issues like copyrighted material on the internet. The first would be that the
liability or responsibility for that protection would cause the Internet service providers to
overreact. They quote in the essay Neal Katyal, who notes, “Because and ISP derives
little utility form providing access to a risky subscriber, a legal regime that places liability
on an ISP for acts of its subscribers will quickly lead the ISP to purge risky ones form its
system.” The also quote Assaf Hamdani, who similarly worries that ISPs will
inefficiently exclude some users because “ISPs do not capture the full value of the
conduct they are entrusted with policing.” Holding Internet Service Providers
Accountable, Lichtman and Posner (2004).
The second concern according to Lichtman and Posner is that by having immunity for the
ISPs Congress feels this will have a direct effect of encouraging the development of
technologies which maximize user control over what information is received and also the
development and utilization of blocking and filtering techniques. So, if we do not have
immunity for the ISPs, placing any liability on them will hinder technology. Id.
In regards to strong contract language solutions, ISPs themselves are already a part of a
complicated and all-inclusive network of contracts, specifically the peering and transmit
arrangements under which the various private owners of the Internet backbone agree to
carry traffic one to another. These contracts which focus on cyber-security would be
perpetually out of date, and updating such a complicated web of independent security
obligation should be all but impossible given the number of parties involved and the
complicated questions any update would raise regarding the appropriate adjustments to
the flow of payments. Id.
The concern according to Lichtman and Posner, in imposing liability on one party almost
inevitably discourages another party from taking adequate precautions. Imposing liability
on the ISPs might inefficiently reduce subscriber incentives to install virus protections
and alike. Id.
We have to be careful when focusing on the blame aspect of copyright infringement and
bad behavior. We do not want to enforce regulations, laws and penalties to a level where
a decrease of our technological advances occur due to fear of retribution. We have to
strike a balance of responsibility without compromising our ability to maintain a sense of
freedom on the Internet.
3. Who is more persuasive, Lichtman and Posner or the Supreme Court in
Grokster?
I have to say that I felt the Supreme Court in Grokster was more persuasive than
Lichtman and Posner. As found the Supreme Court did a thorough job looking at this
case and the intricacies of this case when looking at similar situated cases like Napstar to
compare it to.
It was noted on discovery that billions of files are shared across peer to peer networks
each month. Respondents in the case were aware that users employed their software
primarily to download copyrighted files, although the decentralized networks do not
reveal which files are copied and when. The Court felt that the Respondents were not
merely passive recipients of information about infringement. The record was replete with
evidence that when they began to distribute their free software, each of them clearly
voiced the objective that recipients used the software to download copyrighted works and
took steps to encourage infringement. The District Court, and on Appeal granted
Respondents summary judgment as to their liability arising from distribution of their
software on the basis that the court found respondents software to be capable of
“substantial noninfringing uses could not give rise to contributory liability for
infringement unless the distributor had actual knowledge of specific instances of
infringement and failed to act on that knowledge. Metro-Goldwyn-Mayer, Inc v
Grokster, 125 S.Ct. 2764, (2005).
The Supreme Court ultimately determined that MGM’s evidence in the case most
obviously addressed a different basis of liability for distributing a product open to
alternative uses. In the case, the Court stated, evidence of the distributors’ words and
deeds going beyond distribution as such shows a purpose to cause and profit from third-
party acts of copyright infringement. If liability for inducing infringement is ultimately
found, it will not be on the basis of presuming or imputing fault, but from inferring a
patently illegal objective form statement and actions showing what that objective was. Id.
The Supreme Court appears to have gone through a very lengthy review of intermediaries
and the regulations surrounding the intermediaries’ responsibility before making their
decision. This all relates to my previous answers to the other questions in this weeks
work that we cannot apply one answer to all infringements. We need to look at each case
independently, research the issues surrounding the alleged illegality and decide
accordingly
This is likely a realistic conclusion. You make good use of integrating the readings to
come to your conclusion.
Overall, as usual you put forth complete and thorough answers and show substantial
understanding of the subject matter. The discussion of history, concepts, and facts are
generally appreciated, but it is possible that too much use of supporting material can be a
distraction to the reader as it impedes the smooth development of your argument.
Remember that the whole point of legal writing is to persuade your reader of your thesis,
so you shouldn't structure your paper to impede your ability to persuade.