Secondary Liability of Internet Service Providers in the United States: General Principles and Fragmentation

2017 ◽  
pp. 93-108
Author(s):  
Salil K. Mehra ◽  
Marketa Trimble
Keyword(s):  
United States ◽  
Service Providers ◽  
The United States ◽  
Internet Service Providers ◽  
Internet Service ◽  
Secondary Liability

scholarly journals Transplanting the United States' Style of Safe Harbour Provisions on Internet Service Providers Via Multilateral Agreements: Can One Size Fit All?

2018 ◽  
Vol 26 (2) ◽  
pp. 369
Author(s):  
Suzi Fadhilah Bt Ismail ◽  
Ida Madieha Abdul Ghani Azmi ◽  
Mahyuddin Daud
Keyword(s):  
United States ◽  
Service Providers ◽  
The United States ◽  
Copyright Holder ◽  
Internet Service Providers ◽  
Similar System ◽  
Internet Service ◽  
Safe Harbour ◽  
Common Purpose ◽  
Pass Through

Ideally, internet service providers (ISP) should not be burdened with policing contents that pass through their services as they have no editorial control over them. The United States Digital Millennium Copyright Act 1998 (DMCA) changes the ball game by making it mandatory on ISPs to take down infringing copyright materials if they received a notice and takedown request from a copyright holder. In exchange, the ISPs enjoy safe harbour from any liabilities that might arise from their user's action. Serious efforts are needed to transpose a similar system via negotiations and multilateral treaties and agreements involving a number of countries such as through the Trans-Pacific Partnership (TPP) Agreement. Despite the withdrawal of the United States’ (US) from the TPP, and in view of the global initiatives of harmonization of intellectual property (IP) laws, this article aims to explore the different system of ISPs’ obligations and liabilities in the twelve TPP member countries. It also examines some of the strengths and weaknesses of each system. It concludes with an argument that whilst some form of safe harbour should be created to assist IP right owners in policing their right, the US private notice and takedown system is not without its flaws and hence, other existing systems which are adopted in some of the TPP member countries are equally feasible and serve a common purpose in tackling the issue of copyright infringement vis-à-vis ISP liability. Eventually, there is no compelling reason to impose one single system on all the TPP member countries to police the internet via ISP liability.

Internet Neutrality

2016 ◽  
Author(s):  
Maria Löblich
Keyword(s):  
High Speed ◽  
Business Models ◽  
Service Providers ◽  
The United States ◽  
The Internet ◽  
Communication Studies ◽  
Net Neutrality ◽  
Internet Service Providers ◽  
Internet Service ◽  
Internet Neutrality

Internet neutrality—usually net(work) neutrality—encompasses the idea that all data packets that circulate on the Internet should be treated equally, without discriminating between users, types of content, platforms, sites, applications, equipment, or modes of communication. The debate about this normative principle revolves around the Internet as a set of distribution channels and how and by whom these channels can be used to control communication. The controversy was spurred by advancements in technology, the increased usage of bandwidth-intensive services, and changing economic interests of Internet service providers. Internet service providers are not only important technical but also central economic actors in the management of the Internet’s architecture. They seek to increase revenue, to recover sizable infrastructure upgrades, and expand their business model. This has consequences for the net neutrality principle, for individual users and corporate content providers. In the case of Internet service providers becoming content providers themselves, net neutrality proponents fear that providers may exclude competitor content, distribute it poorly and more slowly, and require competitors to pay for using high-speed networks. Net neutrality is not only a debate on infrastructure business models that is carried out in economic expert circles. On the contrary, and despite its technical character, it has become an issue in the public debate and an issue that is framed not only in economic but also in political and social terms. The main dividing line in the debate is whether net neutrality regulation is necessary or not and what scope net neutrality obligations should have. The Federal Communications Commission (FCC) in the United States passed new net neutrality rules in 2015 and strengthened its legal underpinning regarding the regulation of Internet service providers (ISPs). With the Telecoms Single Market Regulation, for the first time there will be a European Union–wide legislation for net neutrality, but not recent dilution of requirements. From a communication studies perspective, Internet neutrality is an issue because it relates to a number of topics addressed in communication research, including communication rights, diversity of media ownership, media distribution, user control, and consumer protection. The connection between legal and economic bodies of research, dominating net neutrality literature, and communication studies is largely underexplored. The study of net neutrality would benefit from such a linkage.

scholarly journals Pushing Back on Stricter Copyright ISP Liability Rules

2021 ◽  
pp. 299
Author(s):  
Pamela Samuelson
Keyword(s):  
United States ◽  
Service Providers ◽  
The United States ◽  
Fundamental Rights ◽  
Safe Harbor ◽  
The European Union ◽  
Internet Service ◽  
Liability Rules ◽  
Stakeholder Interests ◽  
Wide Range

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale. Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and Related Rights in the Digital Single Market. In particular, the Directive’s Article 17 places much stricter obligations on for-profit ISPs that host large amounts of user contents. Article 17 is internally contradictory, deeply ambiguous, and harmful to small and medium-sized companies as well as to user freedoms of expression. Moreover, Article 17 may well violate the European Charter of Fundamental Rights. In the United States, Congress commenced a series of hearings in 2020 on the safe harbor rules now codified as 17 U.S.C. § 512 of the Digital Millennium Copyright Act (DMCA). In May 2020, the U.S. Copyright Office issued its long-awaited study on Section 512, which recommended several significant changes to existing safe harbor rules. The Study’s almost exclusively pro–copyright industry stances on reform of virtually every aspect of the rules notably shortchanges other stakeholder interests. Congress should take a balanced approach in considering any changes to the DMCA safe harbor rules. Any meaningful reform of ISP liability rules should consider the interests of a wide range of stakeholders. This includes U.S.-based Internet platforms, smaller and medium-sized ISPs, startups, and the hundreds of millions of Internet users who create and enjoy user-generated content (UGC) uploaded to these platforms, as well as the interests of major copyright industries and individual creators who have been dissatisfied with the DMCA safe harbor rules.

scholarly journals Toward an Epistemology of ISP Secondary Liability

2016 ◽  
Author(s):  
Dan Burk
Keyword(s):  
Service Providers ◽  
Common Law ◽  
The United States ◽  
Internet Service ◽  
Legal Provisions ◽  
Contributory Infringement ◽  
Corporate Entity ◽  
Sociotechnical Networks ◽  
The Common ◽  
Secondary Liability

At common law, contributory infringement for copyright infringement requires 'knowledge' of the infringing activity by a direct infringer before secondary liability can attach. In the United States, the 'safe harbor' provisions of the Digital Millennium Copyright Act, that shield Internet Service Providers (ISPs) from secondary copyright liability, are concomitantly available only to ISPs that lack the common law knowledge prerequisites for such liability. But this leads to the question of when a juridical corporate entity can be said to have 'knowledge' under the statute. Legal institutions have well-established processes for inferring the knowledge state of natural persons, but corporations are complex sociotechnical networks of human and non-human elements whose information state does not map well onto such inferential methods. This question is of course not unique to copyright liability; corporate entities may be responsible for 'knowing' actions under a variety of applicable legal provisions, and the question of corporate knowledge is generally under theorized. But consideration of ISP 'knowledge' in this context points the way to consideration of corporate epistemology that must be foundational to determining corporate responsibility in copyright protection.

Banding together for bandwidth: An analysis of survey results from wireless community network participants

First Monday ◽  
2011 ◽  
Author(s):  
Gwen Shaffer
Keyword(s):  
United States ◽  
Sense Of Community ◽  
Service Providers ◽  
The United States ◽  
Resource Mobilization ◽  
Community Networks ◽  
Policy Recommendations ◽  
Internet Service ◽  
Local Politicians ◽  
Survey Results

Using a resource mobilization framework, this study attempts to better understand the factors motivating people to join wireless community networks that enable members to share bandwidth. In addition, the research illuminates ties between this kind of peer-to-peer networking and civic engagement at a broader level. An in depth survey completed by 43 respondents from throughout Europe and North America found that participants in this movement felt a stronger sense of community, as well as were more likely to help elect local politicians and to work on local issue campaigns, after joining WiFi sharing initiatives. The study concludes with proposed policy recommendations—geared toward regulators, legislators and Internet service providers in the United States.

Robbery under arms: Copyright law and the Australia-United States Free Trade Agreement

First Monday ◽  
2006 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
United States ◽  
Free Trade ◽  
Free Trade Agreement ◽  
Service Providers ◽  
Trade Agreement ◽  
Copyright Law ◽  
Fair Use ◽  
Internet Service Providers ◽  
Protection Measures ◽  
Internet Service

This article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

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