ISPs, DMCA “Safe Harbors,” and Volition [6:35 pm]
The Fourth Circuit Court of Appeals has affirmed in the Costar v. Loopnet case that ISPs and other providers are not liable for direct infringement when their servers passively copy works that have been uploaded, downloaded, or hosted by users if they didn’t have knowledge that the works were infringing. Their rationale: copyright infringement requires as active “volitional” act; setting up automatic servers to upload/download/host content is purely passive and does not include any active participation by the hosting company.
Scrivener’s Error suggests that the case was mis-specified at the outset: 21 June 2004
The problem with this case is that it actually answers almost nothing. CoStar pressed a theory of direct infringement, which did not persuade the court.
Because LoopNet, as an Internet service provider, is simply the owner and manager of a system used by others who are violating CoStar’s copyrights and is not an actual duplicator itself, it is not directly liable for copyright infringement.
Slip op. at 3 (emphasis in original). This is not a terribly surprising result. CoStar should have been pressing contributory and vicarious liability. At least, in the abstract it should have been. [...]
[...] What this means in the long run is that the rhetoric in the Fourth Circuit’s opinion will be quoted out of context in cases turning on contributory or vicarious infringement, or in attempts to intimidate persons making what are essentially contributory or vicarious infringement claims. [...] The parties appear to have obstinately refused to address any theory of liability other than direct; the court obliged their apparent myopia with an opinion that only Mr Magoo could love.