Internet Service Provider Liability under Copyright Infringement

Actually, if we look at Copyright Act 1987, a party is liable for copyright infringement if they violate the exclusive right of the original copyright owner. For ISP, they are three categories that fall under ISP liabilities which are:

1. Direct liability
2. vicarious liability
3. contributory liability

For direct liability, it is quite impossible to make an ISP liable for it because the basis for this claim is the direct infringement from the provider. In the case of Religious Technology Centre v Netcom Online , the court held that the ISP is not directly liable for the automatic pass-through of the infringing messages posted to Usenet by its subscriber. This is because the act of posting the infringing material is not the act of the ISP but by it’s a subscriber.
The same goes in the subsequent case of Sega Enterprises v. Maphia where the court extended the logic of Netcom and refused to hold liable as a direct infringer the operator of a BBS for the uploading and downloading by subscribers of the unauthorized Sega’s video games.

But, the issue arises here is whether an ISP is liable for copyright infringement for the copies made by its equipment? In this case, the ISP's must be aware of the theories under the Copyright Act which also provide the provision which is known as the contributory liability. Under this liability, an ISP can be liable for infringement even if they do not directly take part in the copying or distribution of a work. Under this concept of "contributory infringement," an ISP may be guilty of copyright infringement when they cause or contribute to the infringing conduct of another with knowledge of the other party's infringing activities. In short, even they are not directly involved in posting the infringing materials but as the providers they indirectly facilitate the subscribers and users to post and upload the unauthorized copies illegally on their site. However, to succeed under this theory, an ISP must have knowledge that its users have posted such illegal copies on their sites which in my opinion is quite difficult and hard to prove.

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Internet Service Provider Liabilty: Whether ISP liable under defamation(libel) or not.

An ISP does not liable for the libel defamation because naturally or generally they do their duty only what the materials/information have been provided to their service and they doesn’t observing or monitoring all the information that they sending to their user or subscriber. They does doing their job as a courier of the information that have been provided by other party or its subscriber without doing any observation or doing editing to any information that provided to them.

In the case of Smith v California, an ISP is presumed similar like a book shop owners which is not liable for the liability on defamation on libel. The reason is the owner’s of book shop does not know all the contains of information in all of the books in their shop. The owner of a book shop is not a publisher that have the obligation to observe or control all the contains in the all books that they are sell. Similar to an ISP, an ISP is only as a courier or seller of the information provided to them by their subscriber or others internet user. It is a difficulty to the ISP to control or observe all the contain of the information that provided by third party like its subscriber. In the case of Cubby Inc v CompuServe Inc, the court held that CompuServe as an ISP, does not liable for the defamation of libel that have been provided by its subscriber. The court held that CompuServe is similar like a owner of book shop, newspaper seller or a librarian in public library. They does not rationally expect as have all the eyes, observation and energy to control all the contains of all the information that being provided to them.

But, if the ISP promoted their self as a controller and distributor and trying to filter, editing and observing all the messages or information in their websites, they must responsible and liable for the defamation action against them. Their position is same like a publisher that must take control, observe and edit all the messages or information in the book that will be published. In the case of Stratton Oakment v Prodigy Service, the court held that Prodigy as an ISP was liable under defamation because they had promoted their self as a controller provider to their subscribers. Their position is same like a publisher because they try to control all the information and messages that send to their site. But, in USA, the judgment of this case was protested by the section 230 of the USA Telecommunication Act 1996 which provided that the ISP does not liable under defamation even though they try to control all of the unwanted information and messages that comes to their site.

In Zenan v American Online, the court held that an ISPis exclude from the liability of all messages or information that have been provide by third party like subscriber and other internet users. The exception only for the ISP, not for the people that written or spread the information that is absolutely liable for the libel defamation. In Varian Medical System v Delfino , two researcher had found guilty on the act of spreading thousand of defamation messages in the website.

Important to say, if the ISP has realized the defamation information, the must delete the information, if they does not doing that or attempt or make an effort to delete that , the ISP also have the liability of the defamation. In the case of Godfrey v Demon Internet Ltd, the obscene and deflation was realize by the ISP, notice have been given to the ISP to delete the information, but the ISP does not take their action to delete the obscene and defamatory material, and the court held that the Demon has liable.

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