Vol 7 No 1 - Roger Williams University School of Law

imposed ISP liability both in instances where the provider hadactual knowledge of the third-party infringement, and whereconstructive knowledge could be inferred from an ISP’s awarenessof “facts or circumstances from which infringing activity isapparent.”141 This is more stringent than the pre-existingknowledge standard for contributory infringement, which imposedliability if the party knew or should have known that the materialwas infringing.142OCILLA establishes new parameters both defining andlimiting the liability that Internet service providers face for thirdpartyacts of copyright infringement on their services. Bydefinition, OCILLA applies to both traditional ISPs and nonprofitinstitutions of higher education in their capacity as Internetservice providers to students and faculty.143 The provisions ofOCILLA offer ISPs affirmative defenses whereby they can escapeliability for third-party acts of copyright infringement, whetherfacing direct, vicarious, or contributory liability.144 These safeharbor defenses are briefly described in the sections that follow.Passive ConduitDIRECT LIABILITYOCILLA offers a safe harbor for service providers whoperform only the function of a “conduit,” merely transmitting,routing, or providing connections for the digital communications ofothers.145 This provision recognizes the similarity between ISPsand “passive carriers” which were originally exempt under theCopyright Act, as they do not exercise control over the contents oftheir clientele.146 In order to take advantage of this safe harbor, aand Intellectual Property of the Comm. on the Judiciary, 105th Cong., 82 (1997).141. Id.142. The new knowledge standard has been defined as a “red flag” test. Accordingto the House Judiciary Committee, a red flag constitutes “information of any kind thata reasonable person would rely upon” in determining that material is infringing. SeeWIPO Copyright Treaties Implementation Act and Online Copyright InfringementLiability Limitation: Report on H.R. 2281 of the House Comm. on the Judiciary, H.R.Rep. No. 105-551, pt. 1, at 25 (1998). For a discussion of the new knowledge standardand how it should be applied with reverence to the appropriate legislative intent seeDmitrieva, supra note 95, at 251, 253-61.143. 17 U.S.C. § 512.144. See id.145. See 17 U.S.C. § 512(a)(1-5) (Supp. IV 1998).146. See 17 U.S.C.A. § 111(a)(3) (West Supp. 1999) (stating that activities of