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Star Wars Rekindles Old Copyright Hassles
Roast Beef
wrote in to send us a news.com article about
Lucasfilm's form letter to ISPs.
Somewhat related to the recent story about
Bootleg Movies for Download, but
it boils down to the age old "Are ISPs responsible for the
content on their servers" debate.
This is the actual letter which we received here at the University of Chicago. As you can read, they are a bit too gung-ho about things.
Title II of the Digital Millenium Copyright Act squarely confronts the issues raised here by Lucasfilm. Essentially, a qualified service provider is not responsible for copyright infringement by its subscribers under many conditions.
One way a copyright owner can pierce the safe harbor is by sending notice of an infringement to the ISP, under certain conditions. This is what this letter is about. There is a laundry list of details setting forth what constitutes a notice that would serve this purpose. In particular, to be effective, the notification must identify particular works "at that site" and information "reasonably sufficient to permit the service provider to locate the material."
In short, the notice appears intended to be used as a notice of an actual infringement, and not as a blanket, preemptive device to "turn off" the ISP immunity for a given list of works. Clearly the Lucaslawyers are trying to test the limits of the law, or (more likely IMHO) are merely setting up later cases in an abundance of caution. ["Yer honah, we notified them and notified them and notified them a whole buncha' times, but they didn't do nothin'"]
The notice Lucasfilms presents does not appear to qualify, since it is a notice of potential infringements, and not a notice of an actual, present infringement. Here, Lucasfilms is attempting to use something like the notice to effectively "deputize" the world's ISP community as copyright police.
This is probably impermissible. In particular, the DMCA provides that: "Nothing in this section shall be construed to condition the applicability of [the exemption] on-- (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity" provided that the ISP accomodates and does not interfere with "standard technical measures."
Of course, once there *is* an infringement, and once Lucas actually gives notice, that is another issue.
While I am a lawyer, readers should note that the preceding is merely a general summary of a few provisions of the DMCA and should not be deemed legal advice. Legal advice requires application of particular law to particular facts and in DMCA cases, the devil is certainly in the details and particular facts can make the case swing either way. Please forgive the multi-line disclaimer -- my carrier insists upon this sort of thing.