using the cda and the dmca to limit liability

7/30/2019 Using the CDA and the DMCA to Limit Liability

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Taken together, the Digital Millennium CopyrightAct (DMCA) and the Communications andDecency Act (CDA) provide significant protection

against copyright infringement and publication torts

that arise from postings made by third parties on Inter-

net Web sites. This article discusses the protection that

these statutes provide and what operators of Web sites

must do to ensure that they take full advantage of the

protection provided by these laws.

The problem of whether interactive computer serv-

ices that published third-party content would be treat-

ed as publishers (and therefore, according to

common law principles, liable for illegal postings by

their members) or distributors (and therefore not

legally responsible for member postings unless they

had knowledge of illegality) arose in the pre-Internet

era of the early 1990s.The issue became more pressing

as the Internet became a popular communications

medium in the mid-1990s.The problem facing Inter-

net Service Providers (ISPs) and other interactive

computer service providers was how they could pro-tect themselves from liability that might arise based on

information that was posted by third parties without

any direct involvement by the ISP. ISPs voiced con-

cern that, given the millions of users and the enor-

mous volume of communication passing through their

computer systems, it was impossible for them to

responsibly police all communications or investigate

and act responsibly when receiving complaints.

Cases pre-dating the CDA and the DMCA high-

lighted the tension between the policy goal of encour-

aging ISPs to transmit third-party content without

fear of liability and the need to hold ISPs liable undercertain circumstances. For example, in Playboy Enter-

prises, Inc. v. Frena,1 a pre-Internet case, the operator of

a bulletin board service was treated as a publisher and

held liable as a direct copyright infringer, despite its

lack of knowledge, based on the posting of materials

provided by a customer, in effect imposing strict lia-

bility on the service.

Two years later, a court took a different view of ISP

liability based on third-party content. In Religious Tech-

nology Center v. Netcom On-Line Communication Services

Inc.,2 an ISP that transmitted material that infringed the

plaintiff s copyright was held not liable when the ISPs

system was used only to create a copy submitted by a

third party, and the ISP could not verify a claim o

infringement by the plaintiff.3

These cases all involve ISP liability for copyright

infringement, while another line of cases addresses tort

liability for third-party conduct. In Stratton Oakmont,

Inc. v. Prodigy Servs. Co.,4 the plaintiffs sued Prodigy (an

interactive computer service similar to that operated by

America Online (AOL)) for defamatory comments

made by an unidentified party on one of Prodigys bul-

letin boards.The court held Prodigy to the strict liabil-

ity standard typically applied to original publishers of

defamatory statements, rejecting Prodigys claims that itshould be held only to the lower knowledge standard

usually reserved for distributors. The court reasoned

that Prodigy had acted more like an original publisher

than a distributor, both because it had advertised its

practice of controlling content on its service and

because it had actively screened and edited messages

posted on its bulletin boards.

This case put online service providers in the awk-

ward position of taking a hands-off policy to avoid lia-

bility for illegal third-party content posted on their sites

until notified of an illegal posting, and then having toassess the validity of a complaint and respond promptly

and reasonably to avoid liability.

Congress soon took responsibility for encouraging

the growth of the Internet, while at the same time try-

ing to balance the publisher/distributor characteriza-

tion problem by passing the CDA and the DMCA, two

statutes that provide significant protection to online

service providers for third-party publication torts and

copyright infringement.

Using the CDA and the DMCA toLimit Liability for Publication Torts andCopyright Infringement

Lee T. Gesmer

Volume 2 Number 7 June/July 2002 E-Commerce Law 1

Lee T. Gesmeris a partner in the law firm of Lucash, Gesmer

& Updegrove, LLP, in Boston,MA.The firm specializes in all

aspects of the representation of high-technology companies.


2/8

Section 230 of the CDA

The CDA5 was Congress first effort to regulate lia-

bility for content on the Internet. Although a part of

the CDA that regulated the publication of indecent

or patently offensive speech attracted a great deal of

attention was ultimately struck down by the SupremeCourt in 1997, the law contained other provisions that

went unchallenged.

The most important of these, for purposes of this

article, is 230(c)(1) and (2) of the law. Section

230(c)(1) provides that interactive computer services

are not the publishers or speakers of information pro-

vided by another content provider:

(c) Protection for good Samaritanblocking and

screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive com-

puter service shall be treated as the publish-

er or speaker of any information provided

by another information content provider.

Although subsection (c)(1) provides that covered enti-

ties are not to be deemed publishers, the law does not

stop there. Section 230(c)(2), the so-called Good Samar-

itan section of the CDA, provides even further protec-

tion, giving covered entities the kinds of editorial

freedom traditionally reserved for publishers but without

the additional burden of potential liability.This section of

the law removes the disincentives to self-regulation cre-ated by Stratton Oakmont. It provides as follows:

(2) Civil liability

No provider or user of an interactive com-

puter service shall be liable on account of

(A) any action voluntarily taken in good faith

to restrict access to or availability of

material that the provider or user consid-

ers to be obscene, lewd, lascivious, filthy,

excessively violent, harassing, or other-

wise objectionable, whether or not such

material is constitutionally protected;

or

(B) any action taken to enable or make available

to information content providers or others

the technical means to restrict access to

material described in paragraph (1).

Immunity under 230 of the CDA requires three

things. First, the party seeking immunity must be an

interactive computer service. Second, the interactive

computer service must not be an information content

provider,with respect to the disputed activity;and third,

the information at issue must originate with a third-

party user.

Section 230 of the CDA provides broad protec-tion by appearing to put interactive computerservices in the unique position of distributors witheditorial discretion, but cases decided under thestatute and, indeed, the statute itself raise questionsregarding the applicability of the law. For example,what exactly is an interactive computer service?What are the limits of protection provided by theCDA? What can an interactive computer servicedo to be sure that it does not inadvertently crossthe line and become an information contentprovider? What affirmative actions must an inter-active computer service take to ensure that it usesthe protection provided by this statute?

What is an Interactive

Computer Service?

The term interactive computer service is defined

in 230(f)(2) of the CDA:

The term interactive computer service means

any information service, system,or access software

provider that provides or enables computer access

by multiple users to a computer server, including

specifically a service or system that provides accessto the Internet and such systems operated or serv-

ices offered by libraries or educational institutions.

It was at first uncertain whether the courts would

extend the reach of 230 beyond traditional ISPs (i.e.,

Web sites, such as AOL, that enable access to the Inter-

net). Later cases have viewed the definition expansively.

The CDA has, in fact, been used to protect AOL

more than any other company from liability for third-

party tortious conduct, and unsurprisingly most of the

early cases applying the CDA involve AOL as a defen-

dant.6 The first case to address application of the CDAto entities other than traditional ISPs did not arise

until 2000.In Stoner v. eBay, Inc.,7 the court held,with-

out discussion, that eBay, an online auction site, was

protected from liability under a California statute that

prohibits the making of bootleg copies of sound

recordings.This case was unusual in that the conduct at

issue (making bootleg copies of sound recordings)

arguably is preempted by federal copyright law, in

2 E-Commerce Law Volume 2 Number 7 June/July 2002


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which case the action should not have been heard in

state court in the first place, and the CDA (which does

not apply to violations involving intellectual property)

should not have been applied.Nevertheless, Stoner was

the first case to establish the precedent that the CDA

protects a Web site that hosted third-party content thatwas not an ISP in the tradition of companies like AOL.

Additional cases were quick to follow. In 2001, a

California Superior Court extended the protection of

the CDA to the operator of an Internet discussion

group, concluding that 230 extends to users as well as

to operators of an interactive computer service.8

In another case, Schneider v.Amazon.com, Inc.,9 the

court rejected the plaintiff s argument that 230 should

not apply to protect Web site hosts that do not enable

access to the Internet. Rather, the court explicitly con-

cluded that the beneficiaries of the statutes immunityinclude interactive Web site operators such as Ama-

zon.com.10 In Patentwizard, Inc. v. Kinkos, Inc.,11 the

court held that Kinkos, which rents computers with

Internet access, was protected under 230.

Thus far, only one case has limited the definition of

an interactive computer service. In Batzel v. Smith,12

the court held that 230 did not protect the defen-

dants, Museum Security Network (MSN) and its cre-

ator and operator, Tom Cremers, because MSN was

not a true ISP. Nevertheless, the majority of cases

decided in 2000 and 2001 have construed the defini-tion to include Web site hosts, and this is the clear

trend in the law. Any Web site that hosts third-party

content and therefore is vulnerable to a tort claim

should (1) assume that it is covered by the CDA, (2)

take whatever measures the law requires to maintain

that coverage, and (3) assert the CDA as an affirmative

defense if accused of responsibility for tort-based

behavior engaged in by third-parties on the hosts

interactive site.

What are the Limits of ProtectionProvided by the CDA?

Not surprisingly, plaintiffs have been creative in

attempting to circumvent the immunity provided by

the CDA. However, assuming that the court has found

the defendant to be an interactive service provider pro-

tected by the CDA, trademark infringement is the only

area where plaintiffs have found success.

In the first significant case decided after enactment

of the CDA, Zeran, the court rejected the plaintiff s

argument that an interactive computer service could be

held liable for defamatory statements because it had

actual knowledge of the defamatory statements upon

which liability was predicated, so-called notice-basedliability.13

In Morrison v.America Online,14 the court rejected the

plaintiff s attempt to avoid AOLs claim of immunity

under 230 by arguing that she was a third-party ben-

eficiary to the subscriber agreement between the

anonymous speaker of the defamation and AOL. In

Schneider,15 the court not only rejected the plaintiff s

argument that a contract claim avoided the protection

provided by 230 but also noted that nothing in the

CDA limits 230 to tort claims. Other courts have also

held that 230 extends to actions and claims for

declaratory and injunctive relief.16

The only substantive context in which protection

under 230 has been denied thus far is in cases when

the plaintiff has alleged trademark infringement. In

Gucci America, Inc. v. Hall & Associates,17 Gucci notified

Mindspring (an ISP offering services similar to Prodi-

gys and AOLs) that one of its subscribers was using

Mindspring to advertise jewelry that infringed Guccis

trademarks. After Mindspring took no action, Gucci

filed suit on various federal and state trademark law

theories. Mindspring raised 230 of the CDA as a

defense in its motion to dismiss.

Although the court acknowledged that Mindspring,

an ISP, was an interactive computer service, it noted

that 230(e)(2) of the CDA provides that [n]othing in

this section shall be construed to limit or expand any

law pertaining to intellectual property. Rejecting the

defendants argument that the CDA provided immuni-

ty, the court noted that, if the CDA had been intended

to provide immunity from intellectual property

infringement, enactment of the DMCA (which pro-

vides ISPs with conditional protection for copyright

infringement and is discussed below) would have beensuperfluous.A short opinion by a federal district court

judge in the Eastern District of Michigan applied the

same rationale to deny dismissal to a vendor of domain

names sued by Ford Motor Company on trademark

infringement grounds.18

Because 230(e)(2) excludes intellectual property

law violations from CDA immunity, the courts may find

themselves drawn, as these cases proceed on the merits



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into the pre-CDA/Stratton Oakmont analysis: Are the

defendants publishers (who would be liable for

infringement) or distributors (who, once having

knowledge of an infringement, may be held liable for

the infringement if they do not take adequate steps to

curtail it)?The Gucci America and Greatdomains.com cases clearly

leave interactive computer services companies poten-

tially liable for contributory trademark infringement,

but what about liability for direct copyright, patent, and

trademark infringement? The scope of immunity for

copyright infringement is determined by the DMCA

and therefore is clearly excluded from CDA immunity.

Patent infringement, being an intellectual property

right created by federal law, almost certainly will be

viewed as being outside of the scope of the CDA for

the same reasons that trademark infringement was out-

side its scope in Gucci America.

Whether the CDA will provide protection for viola-

tions of the fourth major branch of intellectual proper-

ty law, trade secret law, is uncertain.Trade secret law has

elements that lend themselves to both intellectual prop-

erty analysis and tort analysis. Until the courts have the

opportunity to consider the issue, it remains to be seen

whether the CDA will immunize interactive computer

services that are used by third parties to violate trade

secret rights. In the meantime, interactive computer

service providers should be alert to complaints that

their systems are being used to expose trade secrets andreact quickly to complaints.

When is an Interactive Computer Service

also an Information Content Provider?

Section 230 of the CDA protects interactive com-

puter services from liability for the acts of information

content providers. Section 230(f)(3) of the CDA pro-

vides that the term information content provider

means any person or entity that is responsible, in whole

or in part, for the creation or development of informa-

tion provided through the Internet or any other inter-active computer service.

There is, of course, no reason that an interactive

computer service cannot also be an information con-

tent provider, and most interactive computer services

do provide content.For example,AOL,Yahoo.com, and

MSN.com permit subscribers to publish on their sites,

but they also publish their own content.Section 230 of

the CDA provides immunity in the case of illegal post-

ings by subscribers, but it does not provide immunity

with respect to material for which the service is itself

responsible.Thus far, no plaintiff has successfully argued

that companies such as eBay or Amazon.com are

responsible for the development of the offending infor-

mation, thereby turning an interactive computer serv-ice into an information content provider.

In Stoner, for example, the plaintiff was unable to

overcome immunity by arguing that eBay had moved

itself into the position of an information content

provider by informing prospective purchasers that ille-

gal recordings were available on its site.The court found

it dispositive that the information in dispute had origi-

nated with third-party sellers, not with eBay, and there-

fore it was the sellers, not eBay, that were the

information providers.The court concluded that nei-

ther aggressive advertising nor the imposition of a feeincluding a fee based in part on the price at which an

item is soldtransforms an interactive service provider

into a seller responsible for items sold.19 Likewise, the

fact that eBay provides insurance for many auctioned

items as well as escrow and payment services did not

render eBay a seller of the offending products.20

Do Interactive Computer Services Need to

Take Affirmative Actions to Receive Immunity

under 230 of the CDA?

Section 230(d) of the CDA provides:

Obligations of interactive computer service

A provider of interactive computer service

shall, at the time of entering an agreement

with a customer for the provision of interac-

tive computer service and in a manner

deemed appropriate by the provider, notify

such customer that parental control protec-

tions (such as computer hardware, software, or

filtering services) are commercially available

that may assist the customer in limiting access

to material that is harmful to minors. Suchnotice shall identify, or provide the customer

with access to information identifying current

providers of such protections.

Although the statute does not make immunity

expressly contingent on disclosure of parental control

protection availability, the cost of providing the disclo-

sure is so minimal that it seems prudent for any entity

that does business online and permits the publication of



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third-party content to provide disclosure. Figure 1 pro-

vides an example of a Model Minor Access Policy.

Section 230 of the CDA has been interpreted to give

interactive computer service providers the best of both

worlds. By being given the legal status of distributors,

providers are immunized from tort claims based oninformation posted by third parties; at the same time,

they cannot be held liable for the exercise of functions

traditionally performed by publishers, such as deciding

whether to publish, withdraw, postpone, or alter con-

tent, and they are free even from liability on notice.

Notice of postings that indicate illegality does not

defeat immunity, and interactive service providers can

choose not to act in response to complaints from vic-

tims of alleged third-party torts.

None of this means, of course, that the original culpa-

ble party who posts defamatory messages would escape

accountability.Though the CDA keeps government reg-

ulation of the Internet to a minimum by providing

immunity for tort liability on the part of companies that

serve as intermediaries (at least in the area of tort liabili-

ty), persons who engage in harmful online speech (such

as defamation, stalking, and harassment by means of a

computer) have no special protection by reason of the

fact that they use a computer to engage in these wrongs.

Meanwhile, service providers must remain vigilant with

respect to complaints involving copyright, trademark,

patent, and trade secret violations.

Section 512 of the DMCA

Even though 230 of the CDA requires almost no

affirmative steps by interactive computer services to be

immunized against publisher liability (apart from liabil-

ity for intellectual property violations), Congress took a

very different view of liability for copyright infringe-

ment, creating a complex system that establishes strict

requirements for immunity from copyright liability

based on third-party postings.

Title II of the DMCA added 17 U.S.C. 512 to the

US copyright statute. Section 512 is intended to give

service providers greater certainty regarding copyright

infringement risk by creating a safe harbor from liabil-

ity. Not every aspect of this complex law will be dis-

cussed in this article.21

Section 512 of the Copyright Act limits liability in

connection with four types of activities as follows:

1. Service providers that act essentially as a data

conduits, transmitting material at the request of

others.The best example is the conventional ISP.

( 512(a)).

2. Service providers that provide system caching as a

temporary service. System caching is typically an

appliancetechnology used by ISPs and others todecrease Internet wait times by caching frequent-

ly demanded information locally.This is a relative-

ly narrow service provided by specialized

communications companies. ( 512(b)).

3. Service providers that permit third parties to store

information. This is the broadest category; it

includes any Web site that hosts third-party con-

tent. ( 512(c)).

4. Search engines. Examples are Yahoo! and Google

( 512(d)).

Because the vast majority of practitioners are likelyto encounter demands for legal services from compa-

nies in the third category, we will discuss application of

512(c) of the Copyright Act to that group in some

detail.The other categoriesISPs, caching services, and

search enginesare highly specialized, small in num-

ber, and are likely to have in-house counsel who are

trained to deal with issues arising under the DMCA on

a somewhat regular basis.

Section 512(c)Conditions

to Protection

Section 512(c) creates an exemption from copyright

liability by reason of the storage at the direction of a user

of material that resides on a system or network controlled

or operated by or for the service provider . . . .

Who qualifies for protection under this exemption?

Two provisions of 512 provide the definition of a

service provider for purposes of 512(c).

First, 512(a) defines a service provider as:


Figure 1

Model CDA Minor Access Clause

Parental control protections (such as computer hard-

ware, software, or filtering services) are commercially

available that may assist you in limiting access tomaterial that is harmful to minors. If you are inter-

ested in learning more about these protections,

information is available at http://www.worldvillage.

com/family/parental.html, as well as at a number of

other Internet sites that provide information on this

form of protection.


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an entity offering the transmission, routing, or

providing of connections for digital online com-

munications, between or among points specified

by a user, of material of the users choosing,with-

out modification to the content of the material as

sent or receivedThe definition of a service provider under the

remaining three exemptions is expanded further by

512(k)(1)(B) to include a provider of online services or

network access, or the operator of facilities therefore . .

. .Taken together, the definition of a service provider

for purposes of 512(c) is very broad and encompasses

any entity that provides online services, whether a tra-

ditional ISP or simply a conventional Web site that per-

mits the posting of third-party content.

Unlike the CDA, however, the DMCA establishes

strict requirements and conditions in exchange for this

immunity. A service provider must satisfy three condi-

tions to take advantage of the exemption provided by

512(c).

Knowledge. First, the provider must lack knowl-

edge that it is hosting infringing material.The provider

must lack actual knowledge that the material is

infringing, it must not be aware of facts and circum-

stances from which infringing activity is apparent

(known as the red flag test), and finally, after the red flag

is waved, it must act expeditiously to remove, or dis-

able access to, the material.22

Financial Benefit. Second, the provider cannotreceive a financial benefit directly attributable to the

infringing activity when the provider has the right

and ability to control such activity.The legislative his-

tory suggests that set-up fees, monthly service charges,

charges for connect time, and the like should not be

deemed directly attributable to infringing activity

under this section.23 However, sales or commissions

based on sales or licenses of the infringing work would

constitute such a financial benefit and str ip the provider

of protection under this section.

Notice and Take Down. Third, upon notifica-tion of claimed infringement, the provider must

respond expeditiously to remove or disable access to

the material.24 This is referred to as a notice and take-

down procedure.The details of the notification provi-

sions of the law are discussed below.

Notice and Take DownA Closer Look

The concept of notification, or notice and take

down,is critical to 512.The statute provides a detailed

procedure for such notification and requires a service

provider seeking protection under the law to appoint a

designated agent for purposes of notice and to register

the agent with the US Copyright Office.

To be effective,notification of infringement must be

written and contain the following: Signature. The notification must be signed

(either physically or electronically) by a person

authorized to act on behalf of the owner of an

exclusive r ight that is allegedly infringed.25

Identification of Material. The copyrighted

work claimed to have been infringed must be

identified, and the complaining party must identi-

fy the material claimed to be infringing and pro-

vide information reasonably sufficient for the

provider to locate the material (e.g., the Web site

address).26

Contact Information. The complaining party

must provide the service provider with informa-

tion such as its address, telephone number, and

email address.27

Good Faith. The complaining party must state

its good faith belief that use of the material in the

manner complained of is not authorized by the

copyright owner, its agent, or the law.28

Authorization. The notification must state,

under penalties of perjury, that the complaining

party is authorized to act on behalf of the owner.29

Although these elements are a required part of the

notification, the statute does not require perfection,

except with respect to the requirement that notification

be in writing. Substantial compliance with the other

requirements is adequate.The statute describes the cri-

teria for partial notification in detail.30

In addition to its takedown provisions, the statute

also describes a put-back procedure that permits the

service provider to restore the offending material upon

certification of legality by the poster following notifica-

tion to the poster.31

In order to rely on 512,a service providermustdes-

ignate an agent to receive notification under the law.

The providermustpublicize its agents identity in two

ways.First, the service provider must provide basic con-

tact information to the US Copyright Office.32 The

Register of Copyrights is required to maintain a direc-

tory of agents available for inspection.This directory is

available on the Internet at http://www.loc.gov/copy-

right/onlinesp/list/index.html.The Copyright Office pro-



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vides an Amended Interim Designation of Agent form

at http://www.loc.gov/copyright/onlinesp/format.html.

Second,the service provider must provide the same infor-

mation directly to the public,through its service, including

on its Web site in a location accessible to the public.33 Figure

2 is a copy of a model form of agent designation.

Cases Interpreting 512(c)

of the DMCA

As a relatively recently enacted statute, there is little

interpretive case law involving 512(c) of the DMCA.

The cases that have been decided apply the notice and

takedown provision in the statute.


Figure 2

Model DMCA Copyright Act Policy

1. Introduction.This policy is intended to implement the procedures described in Title II of the Digital Millen-

nium Copyright Act,17 U.S.C. 512 (DMCA) for the reporting of alleged copyright infringement. It is the pol-

icy of [Company Name] (Company) to respect the legitimate rights of copyrights owners, their agents, and

representatives. Users of any part of the Company computing system are required to respect the legal protections

provided by applicable copyright law.

2. Designated Agent.The Companys Designated Agent to receive notification of alleged infringement under the

DMCA is [name, address, telephone number, and email]. Upon receipt of notification of claimed infringement,Company will follow the procedures outlined herein and in the DMCA.

3. Complaint Notice Procedures for Copyright Owners. A notice of alleged copyright infringement to the Desig-

nated Agent must include the following:

A. An electronic or physical signature of the copyright owner or a person authorized to act on behalf of the

owner of an exclusive right that is allegedly infringed;

B. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at

a single online site are covered by a single notice, a representative list of such works at that site;

C.Identification of the material that is claimed to be infringing or to be the subject of infringing activity and

that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit

the Company to locate the material;

D. Information reasonably sufficient to permit the Company to contact the complaining party, such as an

address, telephone number, and, if available, an electronic mail address at which the complaining party may

be contacted;

E. A statement that the complaining party has a good faith belief that use of the material in the manner com-

plained of is not authorized by the copyright owner, its agent, or the law; and

F. A statement that the information in the notice is accurate, and under penalty of perjury, that the complain-

ing party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Failure to include all of the above information may result in a delay of the processing of the DMCA notification.

4. Notice and Takedown Procedure. It is expected that all users of any part of the Company computer system will

comply with applicable copyright laws. However, if the Company is notified of claimed copyright infringement,

or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond

expeditiously by removing, or disabling access to the material that is claimed to be infringing or to be the sub-

ject of infringing activity. Company will comply with the appropriate provisions of the DMCA in the event a

counter notification is received by its Designated Agent.

5. Repeat Infringers. Under appropriate circumstances, the Company may, in its discretion, terminate authoriza-

tion of users of its system or network who are repeat infringers.

6.Accommodation of Standard Technical Measures. It is Company policy to accommodate and not interfere with

standard technical measures it determines are reasonable under the circumstances (i.e., technical measures that are

used by copyright owners to identify or protect copyrighted works).


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InALS Scan, Inc. v. Remarq Communities, Inc.,34 a court

was presented for the first time with the issue of imper-

fect notice under the DMCA.The plaintiff complained

to an ISP that hosted an online newsgroup that published

multiple copies of the plaintiff s copyrighted photo-

graphs. Remarq obtained dismissal based on the fact thatALS had failed to provide a specific list of the infringing

works or identify the works with sufficient detail to

enable the ISP to locate and disable them. Reversing

summary judgment for the defendant, the Fourth Circuit

held that notice was sufficient when it gave the ISP the

ability to identify the multiple infringing copies in the

form of a list of representative works that could easily be

identified by the service provider.

In a second imperfect notice case, eBay v. Hendrick-

son,35 the owner of the 1976 documentary Manson

complained to eBay that it was selling copies of the filmin violation of the owners copyright. eBay requested

proper notice under the DMCA, which the plaintiff

refused to give, instead filing suit against eBay. In this

case, the court found that the plaintiff s pre-suit

demand did not satisfy the substantial compliance

requirement of 512(c)(3) since it lacked a statement

attesting to the good faith and accuracy of the claim

and inadequately identified the material claimed to be

the subject of the infringing conduct.The court also

found that eBay had not had, prior to filing the lawsuit,

actual or constructive knowledge of the infringing

postings.Accordingly, the plaintiffs claim for copyrightinfringement was dismissed.

The DMCA creates a safe harbor from copyright

infringement, but entry to that harbor is narrow. In

contrast to the CDA, the provider must comply with

detailed statutory regulations and be prepared to take

immediate action in response to a legitimate complaint.

It is clear that application of 512 is in its infancy, and

that readers (and attorneys advising clients on proper

behavior under this statute) must be alert to case law

developments that pertain to application of this law.

Notes

1. Playboy Enter.,Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla.1993).

2. Religious Tech. Cntr. v. Netcom On-Line Commun. Servs.,

Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).

3. See also Marobie-FL, Inc. v. Nat.Assn. of Fire Equip. Distribu-

tors, 983 F. Supp. 116 (N.D. Ill. 1997) (finding no direct, con-

tributory, or vicarious liability, despite finding that an ISP that

immediately transmitted data over the Internet but did not

maintain a copy, nevertheless had made a copy, for purposes of

copyright infringement determination, following Netcom).

4. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710

(N.Y. Sup. Ct. May 24, 1995).

5. 47 U.S.C. 230.

6. SeeZeran v.America Online, 958 F. Supp. 1124 (E.D.Va. 1997).

7. Stoner v. eBay, Inc., 2000 WL 1705637 (Sup. Ct.Cal. 2000).

8. Barrett v. Clark, 2001 WL 881259 (Cal. Sup. Ct. 2001).

9. Schneider v.Amazon.com, Inc., 31 P.3d 37 (Wash.App. 2001).

10. Id. at 40.

11. Patentwizard, Inc. v. Kinkos, Inc., 2001 WL 1148254 (D. S.D.

2001).

12. Batzel v. Smith, 2001 U.S. Dist. LEXIS 8929 (C.D. Cal. 2001).

13. Id. at 333.Accord Stoner, 2000 WL 1705637 (the courts have

recognized that imposing liability based on notice of content in

the interactive computer service context would create an incen-

tive for providers to restrict speech and abstain from self-regu-

lation, thereby defeating the purposes of the section).

14. Morrison v.American Online, 153 F. Supp. 2d 930 (2001).

15. Schneider, 31 P.3d 37.

16. See Kathleen R.. v. City of Livermore, 87 Cal. App. 4th 684

(2001).

17. Gucci Amer.,Inc. v.Hall & Assoc., 135 F. Supp. 2d 409 (S.D.N.Y.

2001).

18. Ford Motor Co. v. Greatdomains.com, Inc., 2001 WL 1176319

(E.D. Mich. 2001).

19. Id. at 6.

20. See also Ben Ezra Weinstein and Co.v.America Online,Inc., 206

F.3d 980 (10th Cir. 2000) (holding that AOL was not a content

provider even though it had communicated with provider of

stock market information regarding errors in date); Blumenthal

v. Drudge, 992 F. Supp. 44, 51-52 (D. D.C. 1998) (finding AOL

immune from liability even though it had paid Drudge).

21. For a more comprehensive treatment of the DMCA (including

the anti-circumvention provisions in Title I), seeLee T. Gesmer and

Jennifer Eilers, Copyright Protection and Management and

Online Copyright Infringement Under the Digital Millennium

Copyright Act, available at http://www.lgu.com/publications/softcopy/

pdf/26.pdf.

22. 17 U.S.C. 512(c)(1)(A)(i)-(iii).

23. Id. at 512(c)(1)(B).

24. Id. at 512(c)(1)(C).

25. Id. at 512(c)(3)(A)(i).

26. Id. at 512(c)(3)(A)(ii-iii).

27. Id. at 512(c)(3)(A)(iv).

28. Id. at 512(c)(3)(A)(v).29. 512(c)(3)(A)(i).

30. 512(c)(3)(B)(i-ii).

31. Id. at 512(g)(2)-(3).

32. Id. at 512(c)(2).

33. Id.

34. ALS Scan, Inc. v. Remarq Communities, Inc., 2001 WL 98364

(4th Cir., Feb. 5, 2001).

35. eBay v. Hendrickson, 2001 WL 1078981 (C.D. Cal., Sept. 4,

2001).


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