A problem of content in the digital era is that it is not always possible to identify those responsible for alleged infringement. Even where it is possible, it is not always possible to impact their actions through legal process (they may originate from a foreign jurisdiction or they may have as an ephemeral presence as whack-a-mole). In between the copyright owner and content poster lies the ISP as a pinch point. While the poster may be hard to reach out and touch, the ISP might not.

The DMCA creates a process, more akin to a dance, between copyright holders, Internet networks, and third party content posters when an allegation of infringement is made. In return for being willing to be caught in the crossfire of a copyright dispute, Congress gave service providers immunity for possible copyright infringement liability. [Harlan] [Napster]

There are four possible defenses to liability that deal with transmission, caching, storage, and search engines. In order to be eligible for any of these defenses, a service provider must

• adopt [Corbis Slip at 15 (discussing how detailed policy must be)],
• implement [Corbis Slip at 17 (discussing implementation of policy)], and
• provide notice [Corbis Slip at 16 (discussing quality of notice)]

of a policy for dealing with subscribers who are repeat offenders; [Harlan] [Ellison at 1080] [Corbis Slip at 14 (discussing repeat offenders)] [Aimster] and

• accommodate and not interfere with "standard technical measure" taken to protect copyrighted content. [17 U.S.C. § 512(i)]

Statutory Language: 17 U.S.C. § 512(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 informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures.

For purposes of these defenses, a “service provider” is “a provider of online services or network access, or the operator of facilities thereof.” [17 U.S.C. § 512(k)(1)(B)]. This definition covers a broad range of Internet activities. [Aimster] [Henderickson v. Ebay] [Corbis] [Henderickson v. Amazon.com]

Where the service provider is an educational institution, see 17 U.S.C. § 512(e) which sets forth conditions for treating potential infringers as third parties distinct from the institutions.

Service providers are also immune from liability for wrongful takedowns. 17 U.S.C. § 512(g).

Many ISPs will have immunity, indemnity, and waivers of liablity within their terms of service.

Note that in situations where the service provider does not fall under these provisions or elects not to participate in these defenses, the DMCA gives copyright owners rights to file for injunctions against service providers that would have the same effect as notice and take down. [17 U.S.C. § 512(j)]

Transmission

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)