Vol 7 No 1 - Roger Williams University School of Law

known infringement.117 Thus, the court allowed this claim toproceed to trial.118Unlike Frena, the court in Netcom held that an Internetservice provider serving only the function of a conduit for thirdpartyinformation cannot be held liable for direct copyrightinfringement, because the actual reproduction was made at thehands of the independent third party rather than the ISP.Although Frena dealt with the direct copyright liability of abulletin board operator for alleged third-party postings, aninference can be made that the same liability would attach to anISP in a similar situation. Netcom rejected this notion, likeningan ISP to a telephone company or other communications conduit,which exercises no editorial control over third-party submissions,but instead merely transmits them innocuously.119 Thus,Netcom’s line of reasoning implies that an ISP cannot be heldliable for direct copyright infringement when the infringingactivity originates with a third-party user. As a result, Netcomand Frena suggest conflicting standards of copyright liability forInternet service providers.B. Legislating ISP Copyright Liability: the DMCAFollowing the decisions in Frena and Netcom, scholarlyopinion was divided regarding the proper standard of copyrightliability that should, as a rule, be imposed on ISPs for theiractivities as service providers to third parties.120 As mentionedpreviously, holding ISPs either directly or vicariously liable forthird party copyright infringement would result in strict liability,while holding them to a contributory liability standard, as thecourt did in Netcom, bases liability of the ISP’s awareness of theinfringing activity.121 This debate was also an issue in Congress.In the early 1990s, the Clinton administration had organized atask force on the National Information Infrastructure, whosepurpose was reworking copyright laws to make them conform withthe new realities of the emerging digital society.122 This group’s117. See id. at 1375.118. See Netcom, 907 F. Supp. at 1375.119. See id. at 1370.120. For an overview of some of the different scholarly approaches to this questionsee Dmitrieva, supra note 95, at 237.121. See text supra; see also Dmitrieva, supra note 95, at 237.122. Info. Infrastructure Task Force, Intellectual Property and the National