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A network service provider has a defense to liability for the transmission of content where
- the service provider is "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." [17 U.S.C. § 512(k)(1)(A)]
- the infringing transmission was made by a person other than the service provider (third party content),
- to a person not determined by the service provider, and
- the network is only involved in the automatic transmission of the material and not involve any manipulation, replication (beyond the course of transmission) or interaction.
[17 U.S.C. § 512(a)] [Harlan] Note that the term "service provider" is a broad term. This is not restricted to commercial ISPs; this can mean libraries, community networks, or even WiFi hotspots. [Hendrickson v. eBay]
Storage, Caching, and Search Engines
A service provider has a defense to liability for storage, caching, or providing a search engine [17 U.S.C. § 512(b)] where the service provider is "a provider of online service or network access, or the operator of facilities therefor." [17 U.S.C. § 512(k)(1)(B)]
Service providers which store or host content [17 U.S.C. § 512(c)] on their systems will have a defense to liability where the service provider
- has designated an agent for service of notices with the Library of Congress;
- expeditiously acts in good faith (in other words, where an ISP relies in good faith on an errant notice, the ISP remains protected) in accordance with the process set forth for notice-and-take-down;
- lacks knowledge that material is infringing; and
- does not receive a financial benefit directly from the infringing material (financial benefit from merely hosting does not constitute a direct benefit).
A service provider that engages in caching [17 U.S.C. § 512(b)] of third party content will not be liable if the provider
- does not modify the content or modify any access restrictions to the content, and the caching is an automatic technical process,
- complies "with rules concerning the refreshing, reloading, or other updating of the material" as specified by the creator of the material,"
- does not interfere with technology designed to measure hits, and
- expeditiously removes or blocks any content, upon receipt of proper notice, that the content has been (or ordered to be) removed or blocked at the original server (Notice and Take Down).
Operators of search engines, hyperlinks, online directories and other information location tools will not be liable for linking to infringing material where the provider
- lacks knowledge that the content is infringing,
- does not receive a financial gain from the content if the provider has control over the content, and
- acts expeditiously to remove links to known infringing material (Notice and Take Down). [17 U.S.C. § 512(d)]
See also Parker v Google (no liability found where Google automatically and temporarily stores data)
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