Secondary liability doctrines enable copyright owners to bring claims against third parties that have some relationship to persons who themselves commit infringement (i.e., “direct” infringers). As the Supreme Court has noted, “although ‘the Copyright Act does not expressly render anyone liable for infringement committed by another,’ these doctrines of secondary liability emerged from common law principles and are well established in the law.”
Generally, courts have relied upon three forms of secondary liability: contributory infringement, vicarious liability, and inducement of infringement. A person may be liable for contributory infringement if he or she has “knowledge of the infringing activity, and induces, causes or materially contributes to the infringing conduct of another.” A court may find a person vicariously liable if he or she “profits from direct infringement while declining to exercise a right to stop or limit it.”
In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court imported the doctrine of inducement of infringement from patent law, holding that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”
OSPs and Safe Harbors
There are four distinct safe harbors, detailed in sections 512(a), (b), (c), and (d). These safe harbors are available when a “service provider” engages in one or more of the following corresponding activities:
(a) serving as a conduit for the automatic online transmission of material as directed by third parties (“mere conduit”);
(b) temporarily storing material that is being transmitted automatically over the internet from one third party to another (“caching”);
(c) storing material at the direction of a user on an OSP’s system or network (“hosting”); or
(d) referring or linking users to online sites using information location tools, such as a search engine (“linking”).
An OSP’s eligibility for a given safe harbor depends on the activity. For example, a mere conduit ISP may be eligible for the section 512(a) safe harbor for its conduit activities and may separately be eligible for the section 512(c) safe harbor for hosting websites, but those limitations on liability would be distinct and carry with them separate statutory requirements.
Limitations on Relief and Eligibility for Safe Harbors
An OSP that meets the relevant eligibility requirements for one or more of the safe harbors is not liable for monetary relief and is subject only to limited injunctive relief for infringing activities conducted on or through its system or network within the scope of the applicable safe harbor(s).
In the case of an OSP that qualifies for a safe harbor under sections 512(b), (c), or (d), this injunctive relief is limited to: (1) disabling access to infringing material; (2) terminating the infringer’s account(s); and (3) providing such other relief as may be necessary to address infringement at a particular online location; provided, however, that the relief is “the least burdensome form of relief to the service provider.”
For an ISP that qualifies for the section 512(a) safe harbor, the court may order only the termination of an infringer’s account(s) or the blocking of access to a “specific, identified, online location outside the United States.”
In order to qualify for the limitation on liability provided under sections 512(a), (b), (c), or (d), the OSP must comply with certain threshold requirements. Two of these requirements apply to all four safe harbors:
(1) the adoption and reasonable implementation of a policy to terminate “repeat infringers;” and
(2) the accommodation of and non-interference with “standard technical measures’’ that identify or protect copyrighted works and have been developed according to broad consensus between copyright owners and OSPs, to the extent any such measures exist.
An ISP that acts as a mere conduit for online transmissions qualifies for the limitation on liability provided by section 512(a) if the provider satisfies these two threshold requirements, without having to participate in a notice-and-takedown process.
The full report is available here.