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.