Vol 7 No 1 - Roger Williams University School of Law

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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
provider must not initiate, select, or modify the content of thecommunication—meaning that providers must not determine themessage’s recipients or maintain a copy of the transmission on itsservice in such a manner that it can be accessed by others for alonger period than is reasonably necessary for the transmission totake place.147System CachingOCILLA offers a safe harbor to ISPs for the necessaryfunction of system caching, a technical procedure whereby the ISPmakes a temporary copy of information while transmitting itonline.148 To qualify for this defense, an ISP must meet thefollowing conditions: no modification of the material’s content;regular updating of the material in accordance with technicalstandards; no interference with the ability of technology to returncertain data to the original site; and no circumvention of passwordmechanisms.149 The ISP must also expeditiously remove thematerial alleged to be infringing upon notification from acopyright owner.150VICARIOUS OR CONTRIBUTORY LIABILITYInformation Residing on a System or Network at the Direction ofUsersOCILLA limits the liability of an ISP that stores third-partycontent that is completely under the control of that user.151 Thissafe harbor is contingent on the intermediate knowledge standard:the ISP must not have actual knowledge that the material oractivity is infringing, must not be aware of facts or circumstancesfrom which infringing activity is apparent, and must notfinancially benefit from the infringing activity.152 This defensealso requires the ISP to expeditiously remove or disable access topassive carriers should be limited to “providing wires, cables, or other communicationschannels for the use of others”).147. 17 U.S.C. § 512 (a)(1-5).148. See id. § 512 (b)(2).149. See id.150. See id. § 512 (b)(2)(E).151. See id. § 512 (c).152. 17 U.S.C. at § 512 (c)(1)(ii) and (d)(1)(B).
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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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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 228 and 229: acts of copyright infringement.7 Un
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Page 258 and 259: FBI’s Carnivore: Is the Governmen
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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