Copyright for Librarians

Is your library an Internet Service Provider (ISP)?

Title II of the Digital Millennium Copyright Act (the "DMCA") limits the liability of internet service providers ("ISP") for certain infringements. Congress clearly intended this new law to protect large ISPs like AT&T. It also clearly protects universities that provide internet services to their students, faculty and staff. The definition of a "service provider" is so broad, however, that it also includes public libraries that do no more than make internet connected computers available to the public. Here's part of the definition of "service provider" from the statute:

(k)(1)(B) As used in the section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefore, and includes an entity described in subparagraph (A).

The important words are "a provider of online services or network access." That's pretty broad. This is not necessarily bad news, though -- it means libraries have a choice.

The DMCA gives ISPs some protection from the usual remedies that a copyright owner is entitled to when their rights have been infringed. For example, a copyright owner whose rights have been infringed can ask the court to award it a lot of money - either actual damages or statutory damages, depending on whether the infringer knew what they were doing was wrong, or was truly unaware and had good reason to think the infringing actions were authorized as a fair use. Copyright owners are also entitled to certain kinds of injunctions: court orders that bar the infringer from carrying out actions in the future that would create similar problems for the copyright owner or others. The DMCA takes away from copyright owners most of these remedies on the condition that ISPs agree to help the copyright owner get infringing works off the web as quickly as possible. In effect, it creates a different way other than lawsuits for copyright owners and ISPs to handle alleged infringements involving materials passing through or residing on ISP's network servers.

There is no requirement that an entity entitled to take advantage of these liability limitations must take advantage of them, even after the entity has registered an agent. Compliance with the statute's provisions is completely voluntary. Even AT&T could ignore this statute if it wanted to. The steps for taking advantage of the limitations are somewhat cumbersome. It may not be worth all the trouble if the benefit is very small. So, let's explore the benefits and the process of complying with the statute, so it's possible to weigh the two and decide whether to register as an ISP, and whether to follow the statute's procedures to take advantage of the liability limitations in a particular case.

The DMCA provides liability limitations for the following kinds of activities:

• "Conduit activities" that are largely automatic activities of computers connected to the internet and for which there is no explicit requirement to register an agent to obtain the law's protections:
  • Transmitting or routing material through a system or network controlled by or for the service provider;
  • Providing connections for material through such a system or network;
  • Intermediate and transient storage of that material in the course of transmitting, routing or providing connections
  • Intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider ("system caching")
• Long-term storage of information on the service provider's system or network, for which you must register an agent to obtain the law's protections:
  • Storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider
  • Referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or link
• Taking material down when a copyright owner alleges infringement or or when you learn facts or circumstances from which infringement is apparent, and putting it back up if the page owner says there's been a misidentification or mistake by the copyright owner 

So, will this benefit you? That will vary depending on the extent of the services an ISP provides and the type and numbers of users of those services. For example, a small library that provides the public with access to the internet at one or more computer terminals probably does not provide server space to its patrons. That's one of the most important categories of protection, so if you don't need it, it's probably a waste of time to comply with the statute's requirements. If the library has its own server with a homepage on which it provides links to external resources, it is beginning to do things for which it could benefit under section (d) of the law.

Whether or not to register an agent and comply with DMCA involves reducing the risk of legal liability, so good candidates to make the decision would be your library's risk managers or legal department and your administrators who oversee fiscal responsibilities. You may also need technical support, someone who understands and can identify the activities covered by the DMCA that the library is undertaking.

Questions to guide decision making

Does your library:

• Have computers connected to the internet?
• Make computers connected to the internet available to the general public?
• Operate servers on the internet?
• Place its own materials on its own servers on the internet?
• Permit its patrons to place materials on servers operated by the library?
• Have pages on its servers that contain information locations tools such as (i) directories, indices, references, pointers, or links to materials that are not on the library's servers ("external materials") or (ii) a user interface with search capabilities that would return results to the user that include external materials?

If you can answer yes to the last two bullets, your activities are covered by the parts of DMCA that require you to register an agent, so you may benefit from registering an agent, and training the agent to respond appropriately to notices alleging infringement. If you can only answer yes to the first four bullets, your activities are not among those that the DMCA explicitly requires registering an agent in order to obtain the law's protections and you are unlikely to derive any benefit from registering an agent.