Duties of a Good Host (Copyright: Designate or Litigate)

by Andy Oram
April 23, 1999

Lots of Web servers are unchaperoned; their administrators don’t really know what’s online. Think for instance of Internet Service Providers who offer Web sites to customers. There are also universities that offer a Web site to anyone who signs up for courses, and community centers that offer Web sites to anyone who walks in the door. All these practices are great for self-expression and social debate, but they raise the question of whether the administrator could be legally liable for content he or she doesn’t even know exists.

Few readers know that Congress has dealt with this issue in a 1998 law called the Digital Millennium Copyright Act. In one narrow area—copyright infringement—this act provides a “safe harbor” for administrators of the type I described. But here’s the catch: to take advantage of it, you’re supposed to file with the U.S. Copyright Office. If you follow the law by making in easy for copyright owners to contact you, by taking material off your site when they challenge it properly, and by following the rules that protect your users from false challenges, you are protected from lawsuits.

Sign at the Bottom

Here’s what the Copyright Office currently offers (as an interim implementation of the law). Providers start by downloading a form in PDF from the Copyright Office’s Web site. It’s simple one-pager where the provider designates a person who should receive complaints from anyone who thinks he’s found infringing material. After filling in a name, address, telephone number, fax number, and email address, the provider signs the form and mails it to the Copyright Office with a $20.00 check for processing.

Small as the effort and the fee are, they may sound like the tread of jackboots to providers used to essentially no government regulation whatever. It may satisfy you to know that Barbara Dooley, executive director of the major Internet provider association CIX, helped to work out the system as a compromise with copyright holders and considers it an excellent solution. She would like to make filing easier, ideally reducing it to a Web form that bears a minimal charge or no charge at all. The copyright solution, in turn, will probably be a model for dealing with ISP liability in further areas of Internet regulation such as gambling.

After all, the Copyright Office directory is a service you might use yourself someday. If you’ve paid big bucks for a photo-simulation of “Tashkent in the Year 2100” and find it being used on somebody else’s Web site, you will want to find the guilty party. Traditionally, the “whois” database has been used to contact site administrators, but given the recent shenanigans of Network Solutions and changes being debated internationally in the Domain Name System, you can’t be sure how that solution will look in the future.

At any rate, nobody’s about to change the law now. But the Copyright Office’s regulations are still being developed. If you think you can help them simplify the process and ease the burden on you, they’d love to hear from you. Soon, according to Jennifer Hall, a senior attorney with the office, they will issue a Notice of Inquiry (the traditional way for government agencies to request public comments) and consider responses in finalizing their rules. Check the Copyright Office Web site every two weeks to catch their notice.

Hundreds of Thousands Possibly Affected

Who should file with the Copyright Office? Here’s where Congress muddied things. According to an analysis by the law firm Lutzker & Lutzker, its definition of “service provider” in section 512(k)(1) is quite broad.

The Copyright Office believes that “service provider” applies only to ISPs hosting content for their customers, and expects that only 5000 sites will have to file. But Jonathan Band, attorney with Morrison & Foerster, warns that, “the ultimate number could be quite large. It would include every university, private school, public school system, and public library system. It also conceivably could include large employers who give Internet access to their employers. Any Web site that has a chatroom or bulletin board where subscribers can post messages also should register. In other words, the ultimate number could easily be in the hundreds of thousands.”

This is an article on policy, not an advice column. So I am not going to tell you (as many lawyers would) to send in the Copyright Office’s form. But about 900 institutions have; you can find them in the online directory. For those interested in the history of the issue, I have accumulated a list of court cases regarding ISP liability internationally.

It may be better to spend $20 than to undergo several years of litigation. That’s what happened to the well-known service provider Netcom (as described in the afformentioned list) after a critic of the Church of Scientology posted internal documents to a bulletin board. The Church sued the critic (Dennis Erlich), the bulletin board owner, and Netcom. It took years for the bulletin board and Netcom to extricate themselves from the case, which still continues against Erlich. I notice that Netcom is one of the organizations that has filed a form with the Copyright Office.

Remember that the safe harbor is a narrow regulation applying only to material placed on your server without your consent or knowledge. If one of your employees finds a cool audio clip of a speech by Nicholas Negroponte and copies it to your site, nothing’s going to save you, buddy. On the other hand, the law doesn’t require any filing for regular Internet traffic: you’re automatically protected in cases where traffic passes ephemerally through your server (caching), or if you make a link to infringing material without knowing it’s infringing. The copyright owner may require you to empty your cache or remove the link, though.

If somebody tells you that your server hosts infringing content, you have to “act expeditiously to remove, or disable access, to” the material. For details feel free to look at the law and check section 512(c)(3)(A)—trust me, it’s not as bad as you think; just do a search on the PDF document for “512” and scroll down. If the person whose content you’ve removed comes back and claims it’s not infringing, the rules get quite a bit more complicated; the process is described in section 512(g). Try to understand at least part of this enormous bill; given an issue that potentially touches so many people, concerned groups like the Digital Future Coalition and EDUCAUSE would certainly appreciate some public involvement.


Andy Oram is an editor at O’Reilly Media. This article represents his views only. It was originally published in the online magazine Web Review.