(general term, legal ramifications)
Provider protection for Internet Service Providers has legal ramifications. For example, to be exempted from copyright infringement liability under the Digital Millennium Copyright Act (DMCA), “the party” must be a “service provider” as defined in the Act. However, the protection afforded Internet Service Providers is limited, and there are a number of rigid legal requirements that must be met. Also, Internet Service Providers who do not fully comply with the stipulated restrictions can lose their protections. Thus, Internet Service Providers should review their Websites to make sure that they are, indeed, compliant with the DMCA rules and regulations.
The DMCA covers four categories of services that qualify as “service providers,” many of them broad enough to encompass businesses that may not consider themselves to be such. These categories include:
• Transitory communications, whereby the provider routs, transmits, or provides connections for data coming through the network
• System caching, whereby the provider temporarily stores data coming through the network
• Data storage at the user’s direction, whereby the provider hosts Websites or runs chat rooms, mailing lists, or news groups
• Data location tools, whereby the provider is a search engine
The overarching rule seems to be simple for companies: When in doubt, comply. Any parties even remotely falling within the scope of the DMCA definitions of “provider” should, as a precaution, register under the DMCA. Without the protection afforded under the DMCA, an Internet Service Provider would have to attempt other defenses when it came to copyright infringement claims—such as “the fair use” policy.
One example in which the protection as a Provider did not hold occurred in February 2005, when the Motion Picture Association of America (MPAA) settled a lawsuit against LokiTorrent.com, a Website that the MPAA alleged helps Internet users to find pirated copies of films for download. Edward Webber, the owner of LokiTorrent, agreed to pay $1 million in damages to the MPAA in an out-of-court settlement of the case, after having collected $40,000 in voluntary contributions to his legal defense fund from LokiTorrent’s user base.
Hoffman, I. Are You a ‘Service Provider’? [Online, 2001.] Ivan Hoffman Website. http://www.ivanhoffman.com/provider.html; In Brief. Hollywood Settles Download Suit. The Globe and Mail, February 17, 2005, p. B10.