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Re: Major Labels v. Backbones

  • From: Jeff Ogden
  • Date: Mon Aug 19 23:08:23 2002

I was looking at the text of the DMCA and came across the following which makes me much less optimistic that a court will toss out the RIAA's request for an injunction:

Section 512(j)(1)(B) If the service provider qualifies for the
limitation on remedies described in subsection (a [Limitation
for Transitory Communications]), the court may only grant
injunctive relief in one or both of the following forms:

(i) An order restraining the service provider from providing
access to a subscriber or account holder of the service
provider's system or network who is using the provider's
service to engage in infringing activity and is identified
in the order, by terminating the accounts of the subscriber
or account holder that are specified in the order.

(ii) An order restraining the service provider from providing
access, by taking reasonable steps specified in the order
to block access, to a specific, identified, online location
outside the United States.

However, the following section may offer some hope:

Section 512(j)(2) Considerations.-The court, in considering the
relevant criteria for injunctive relief under applicable
law, shall consider-

(A) whether such an injunction, either alone or in combination
with other such injunctions issued against the same service
provider under this subsection, would significantly burden
either the provider or the operation of the provider's
system or network;

(B) the magnitude of the harm likely to be suffered by the
copyright owner in the digital network environment if
steps are not taken to prevent or restrain the infringement;

(C) whether implementation of such an injunction would be
technically feasible and effective, and would not interfere
with access to noninfringing material at other online
locations; and

(D) whether other less burdensome and comparably effective
means of preventing or restraining access to the infringing
material are available.

I think a backbone provider could argue (A) that a requirement that it block a site would be a significant burden unless all other backbone providers are also required to block the same site, (C) that blocking a single IP address or even a small range of IP addresses isn't likely to be effective for very long and blocking larger IP address ranges or an entire AS is likely to interfere with access to noninfringing material at other online locations, and (D) that at least attempting to work with the network provider that is actually providing service to the infringing site or working through more traditional international copyright enforcement mechanisms are less burdensome and possibly more effective means of preventing access to the infringing material.


Date: Sat, 17 Aug 2002 15:31:03 -0400
From: Jeff Ogden <>
Subject: Re: Major Labels v. Backbones

At 11:23 PM -0700 8/16/02, Jim Hickstein wrote:
--On Friday, August 16, 2002 10:03 PM -0400 John Ferriby <> wrote:
If there are any legal eagles here, can a Common Carrier be a contributing
IANAL, but last I looked -- admittedly a long, long time ago -- ISPs were not afforded protection as common carriers (18 USC?), no matter how much they tried to act like them. Has this changed?

I agree that ISPs aren't common carriers in the legal sense, but an ISP's liability under U.S. copyright law is limited for "transitory communications". The following is taken from a December 1998 publication "THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998--U.S. Copyright Office Summary" (page 10, ):

Limitation for Transitory Communications

In general terms, section 512(a) limits the liability of service providers in
circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else's request. This limitation covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and transient copies that are made automatically in the operation of a network.

In order to qualify for this limitation, the service provider's activities must meet the following conditions:
--The transmission must be initiated by a person other than the provider.
--The transmission, routing, provision of connections, or copying must
be carried out by an automatic technical process without selection of
material by the service provider.
--The service provider must not determine the recipients of the material.
--Any intermediate copies must not ordinarily be accessible to anyone
other than anticipated recipients, and must not be retained for longer
than reasonably necessary.
--The material must be transmitted with no modification to its content.

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