Secondary Liability - Liability of Internet Service Providers (ISPs)

Liability of Internet Service Providers (ISPs)

Regarding internet communications, sometimes the most promising remedy is only available from the standpoint of the internet intermediary (e.g. delete the post, take down the link). In fact, the internet is a special field for secondary liability, because the open architecture of the internet facilitates many communications and users need intermediaries in order to access and contact each other's services.

The question of whether Internet service providers (ISPs) should be held liable for the actions of network users is unresolved. As to copyright, however, ISPs remain liable, in all territories, as primary, direct infringers of copyright for the copies they make on behalf of their customers, so the issue of additional secondary liability is less significant. An ISP's direct liability arises from the ISP's own actions, not the actions of another party. The confusion arises from the fact that two parties are directly liable in the usual case of internet infringement: the ISP and the ISP's customer. In legal terms, they are joint tortfeasors. This is because they both independently commit all of the acts necessary to establish liability under the copyright laws of most jurisdictions. In situations truly involving secondary liability, the party whose secondary liability is claimed has at least not committed one element required for an infringement action. This situation is not present in the usual ISP situation, as the ISP is always in the position of making copies (without authorization of the rights owner), so it is irrelevant that someone else has infringed the same copyright earlier in time. The ISP's liability is direct, not derivative. It is based on the ISP's own actions, not on someone else's.

Recent statutes in the USA (Digital Millennium Copyright Act of 1998) and the European Union have provided significant, though not total, immunity from primary copyright liability that, in the absence of those statutes, would exist for ISPs.

The DMCA states four safe harbors: (a) Transitory network communications (b) System caching (c) Information storage and (d) Information location tools. The last three have so called “notice & take down” rules for specificity in notice of infringement, counter-notice and put-back and liability if false notice has been given.

In order to be eligible for the safe harbor provisions, it is required that the service provider has adopted and reasonably implemented a policy to terminate the accounts of repetitive infringers. In addition, ISPs must accommodate and not interfere with standard technical measures used by copyright owners to protect their works.

As to trademarks, in the absence of statutory guidance, courts have extended both types of secondary liability (vicarious and contributory) to third parties, including in some circumstances ISPs. Here, too, the question whether ISPs will be held liable for the acts of their infringing customers will depend on the degree of the ISP's knowledge and involvement in the specific infringing activity.