Vol 7 No 1 - Roger Williams University School of Law

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subscribers’ conversations.84 Further, the court held thatProdigy’s independent acts of monitoring bulletin board postingsdid not alter its passive character in providing Internet service.85Thus, the court held that Prodigy, as a mere conduit fortransmitting third-party data, was not a publisher or distributorof the material for the purposes of tort law, and found no liabilityfor the ISP.86While Lunney’s holding is similar to Zeran and Blumenthal inthat the court found that an ISP was not liable as the publisher ordistributor of third-party data, Lunney differs in its analysis.Rather than regarding Prodigy’s actions in transmitting thirdpartye-mail messages to its bulletin board as a publication andthen resorting to the congressional safe harbor extinguishing ISPliability for third-party content, Lunney looked instead to theactual function performed by Prodigy in transmitting thesemessages. In concluding that Prodigy acted as a mere conduittransmitting the independent content of its third-party users, theLunney court evaluated the function performed by the ISP in thatcase. It then used this finding to determine both the ISP’s role aseither a publisher or distributor of the third-party content and theprovider’s knowledge of the material’s content. By regarding theISP as a medium for transmitting data rather than a form ofpublishing or distribution, the Lunney court came closer to fullyevaluating the role of an ISP as a medium for communication.Lunney’s holding suggests that the blanket immunityprovisions of the CDA are not necessary for a court to hold that anISP is not liable as the publisher or distributor of third-partycontent posted to its Internet service. Rather than resorting tocomplete immunity under the CDA, a more appropriate schemefor a court determining ISP content liability would constitutemaking a factual finding as to the role of the ISP in presenting thematerial to the public and then using this finding to determine theextent of the provider’s knowledge and control of the third-partycontent. This line of analysis would provide a technique for courtsto evaluate the extent of ISP liability in cases like Blumenthal,where the role of the ISP more resembles a publisher, withoutresorting to a blanket foreclosure on provider liability.84. See id. at 541-42.85. See Lunney, 723 N.E.2d at 542.86. See id.
There are several different factors that are relevant indetermining the role of an ISP in presenting third-party content tothe public. A court could examine the actions of the individualprovider in light of traditional defamation law, and attempt todetermine liability based on whether the provider acts more like apublisher or a distributor of the statement at issue. Anotherpossibility would be to compare an ISP with another form ofconduit, like a telephone company.87 This comparison is not allinclusive,however, because it covers only one of several possibleways that an ISP could function to transmit information to thepublic, some which could arguably involve greater knowledge onthe part of the provider than others. The best comparison, as thispaper will now suggest, is to the provisions in the DMCA limitingISP liability for third-party copyright infringements. If theselimitations were applied to defamation law in the United States asthey are in Europe, ISPs would face uniform liability for thirdpartyacts under OCILLA’s transmission-specific safe harbors.These specific provisions would also properly limit immunity tothose functions of ISPs that truly serve an innocuous function, inthe realms of both copyright and defamation law.II. ISP LIABILITY FOR THIRD-PARTY ACTS OF COPYRIGHTINFRINGEMENTCopyright owners hold, among other rights, an exclusive rightto control the reproduction, distribution, display, or performanceof their protected material.88 The U.S. Copyright Act providesthat “[a]nyone who violates any of the exclusive rights of thecopyright owners . . . is an infringer . . .”89 Subject to therecognized fair use exception, any reproduction of a protectedwork constitutes copyright infringement, and can create liabilityfor the infringer.90 Three standards of liability for copyrightinfringement have developed over the years and have beendiscussed with regard to ISPs.91 Direct liability ensues when anindividual or entity violates any exclusive right of a copyright87. See id.88. 17 U.S.C. § 106 (1996), amended by Pub. L. No. 104-39, 109 Stat. 336.89. 17 U.S.C. § 501(a).90. See Bruce P. Keller, Internet and Online Law: Copyright, 4 P.L.I. Ann.Internet L. Inst., Course Handbook Series, available at 610 PLI/Pat 169, 201 (2000).91. See id.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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