WASHINGTON- A federal appeals court Tuesday made it harder for Internet service providers to claim they are not liable for copyright violations committed by their subscribers, a ruling that could “ripple” through the online industry.
In one of the first rulings on the Digital Millennium Copyright Act of 1999, the 4th U.S. Circuit Court of Appeals held that providers do not enjoy “safe harbor” simply because the warning from the copyright owner was not letter-perfect under the act.
“Ripples are already going through the Internet community,” said Harry Brett Siegel, an attorney for ALS Scan Inc., the Maryland company that filed the suit. “I’ve. . .had calls all morning.”
But media and copyright lawyers said that while the ruling is good news for copyright owners, it could ultimately have a chilling effect on free speech if webmasters rush to remove material anytime someone makes an infringement claim.
“In the carrot-stick analogy, there’s a big stick in terms of taking stuff down,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. “But there’s not much of a carrot in terms of letting it stay up.”
The case began in 1999 when ALS Scan, which produces and markets “adult” photographs to online customers, asked Internet service provider RemarQ Communities Inc. to eliminate two newsgroups that it said posted thousands of copyrighted pictures without permission.
ALS Scan provided addresses for the newsgroups, noting that both had “ALS” in their web addresses. It claimed that other service providers had deleted the offending newsgroups after they were notified of the copyright infringement.
But RemarQ refused, saying it would delete individual items only if ALS Scan could identify them with “sufficient specificity,” according to court documents.
ALS Scan sued, claiming copyright infringement and unfair competition. But a U.S. District Court judge in Baltimore dismissed the case.
The lower court ruled that the Digital Millennium Copyright Act said Internet service providers cannot be held directly liable for copyright infringement simply because they provide access to subscribers who post disputed material.
The district court also ruled that RemarQ enjoyed safe harbor against a claim of “contributory” infringement, because ALS Scan failed to provide the detailed warning required by the act.
The act gives immunity to service providers who can prove they are not aware of infringing material, that they do not profit from it and that they promptly remove it when notified by the copyright holder.
But the appeals court said the lower court was too strict when it required that ALS Scan exactly comply with the notification requirements spelled out in the act. The circuit court said the act allows for the warning notice to “comport with the prescribed format only `substantially,’ rather than perfectly.”
It said the case should not have been thrown out on the basis of ALS Scan’s letter, and sent the case back to district court for further consideration.
“RemarQ tried to hide behind a little cute game of saying, `Well, we don’t know where they are because they didn’t give us the exact address,'” said Siegel, the ALS Scan attorney.
RemarQ’s attorney said Tuesday’s ruling counters the intent of the act, which was designed by Congress to balance the burden of copyright enforcement between service providers and copyright holders. Robert Vieth said the circuit court decision shifts too much of that responsibility to ISPs.
“Obviously RemarQ disagrees with the court’s opinion,” Vieth said. “We think it contravenes the protection Congress intended for service providers. It’s not clear the court fully appreciated the difference between web sites and newsgroups, in my opinion.”
Siegel responded by saying that service providers should share more of the burden of ferreting out copyright violations.
“This is creating an additional layer of duty on the Internet service provider to seek out actual alleged copyright violations even if the information as to the location of those violations is not perfect,” he said.
But Kevin Kuzas, a copyright attorney in the District, echoed Kirtley’s concerns that shifting the burden could lead service providers to be too cautious.
“They have every incentive to overcompensate,” Kuzas said. “It’s not like the Internet service provider is in a box. . .there’s no harm in taking the stuff down.”