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 Tom Frederikse of Clintons presents a one hour lecture on ISP Liability. He covers recent cases such as Newzbin, YouTube and LimeWire as well as recent legislation such as the Digital Economy Act 2010.
With rumours suggesting that LimeWire will face damages of $1 trilllion this is a fascinating lecture for all those involved in the Digital Economy. To view a short excerpt please click on the window opposite or CLICK HERE to visit www.legaltraining.tv
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On the 23rd June the United States District Court gave summary judgement that YouTube were entitled to DCMA "safe harbour" protection in respect of publishing content owned by ViaCom as long as they followed DCMA guidelines.
This may be perceived as a victory for YouTube but the judgment made absolutely clear that sites like YouTube must remove illegal content "expeditiously" or would lose the safe harbour status. YouTube escaped liability as when asked to remove content they had done so quickly.
A few excerpts from the Judgment of Louis L. Stanton
"However, if the service provider becomes aware of a "red flag" from which infringing activity is apparent, it will lose the limitation of liability if it takes no action"
Interestingly goes on, quoting from Senate Report 45 "Section 512 does not require use of the takedown and notice procedure". Therefore a "red flag" can exist when a copyright owner has not used the takedown procedure of the service provider."
The report goes on ".......a service provider would have no obligation to seek out copyright infringement, but it would not qualify for the safe harbour if it had turned a blind eye to red flags of obvious infringement. "
So in this case and on these facts YouTube had done enough. No doubt ViaCom will appeal but in any event this has very much narrowed down the room for manoeuvre enjoyed in the past by the publishers of illegal content. Maybe ViaCom have lost this battle but are a step closer to winning the war.
Of further interest was that Lime Group, Fung and Grokster were distinguished out as they were file sharing P2P networks which are "not covered by the safe harbour provisions of DCMA 512(c).
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Voltage Pictures, producers of the award winning Hurt Locker, are suing 5,000 illegal viewers of the movie for amounts between $1500 (if the pirate admits liability) and $150,000 (if the case goes to trial). In a suit filed in a district court in Washington D.C they say;
"Each time a Defendant unlawfully distributes a free copy of the Plaintiff''s copyrighted motion picture to others over the Internet, each person who copies that motion picture can then distribute that unlawful copy to others without any significant degradation in sound and picture quality. Thus, a Defendant''s distribution of even one unlawful copy of a motion picture can result in the nearly instantaneous worldwide distribution of that single copy to a limitless number of people,"
Nicholas Chartier the Producer was quoted as saying
"...please feel free to leave your house open every time you go out and please tell your family to do so, please invite people in the streets to come in and take things from you, not to make money out of it by reselling it but just to use it for themselves and help themselves. If you think it''s normal they take my work for free, I''m sure you will give away all your furniture and possessions and your family will do the same. I can also send you my bank account information since apparently you work for free and your family too so since you have so much money you should give it away."
Interestingly in this example the ISP''s are working with the movie producers to release lists of subscribers who have infringed copyright.
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 Mr Justice Charleton in EMI Records & Ors -v- Eircom Ltd has made some interesting comments about the exposure of ISP''s to injunctions in relation to digital piracy and also the ability of ISP''s to hide behind data protection legislation. Essentially this seems to be another nail in the coffin of the "we didn''t know it was happening, guv''nor" defence the ISP''s have been using.
"When the internet gained wide currency in the 1990s many of its adages began to believe that a new form of reality had been created. Some felt that it should be subject to no rules since, as it was not based in a particular country, but as its name implies is a world-wide web of communication, unlike the previous means of communication through the post, by telephone, through television or through films, it seemed to be impossible to subject to local regulation. That is not so. Nor should it be. In common with other aspects of life, the internet has a positive and dark side. On the positive side, its aids free communication; it opens up avenues of knowledge so that it has become a centre of learning in itself; it furthers public debate; and has established the swiftest and most far reaching form of communication that humanity has known. It is, on the other hand, also thickly populated by fraudsters, pornographers of the worst kind and cranks."
Crucially he also addresses the question of whether ISP''s who do not themselves illegally place infringing material on their networks have exposure;
"In the Copyright and Related Rights Acts 2000, as amended, references to the right of the copyright holder in section 40 to make available to the public copies of a work are declared to include such acts as broadcasting the work, issuing copies of it or renting out copies; as in DVD library. Then, after establishing those legal entitlements in the holder of copyright, subs. 3 and 4 of that section go together and I quote them:-
“3. Subject to subsection 4, the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
4. Without prejudice to subsection 3, where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable, thereafter that person shall also be liable for the infringement.”
Injunctions are granted by the court where it “just and convenient”. That is the basis for all equitable relief formalised by the Supreme Court of Judicature (Ireland) Act 1875. I interpret the Copyright and Related Rights Act 2000 as extending to the making of injunction against an innocent third party in order to block, in the appropriate way that is convenient as to the balance between the parties and that is just, as to their standing and conduct, the wholesale illegal destruction of the right to livelihood through creative effort which copyright, as a fundamental concept in law, is designed to defend and to vindicate.
This is further good news for copyright holders.
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 A US district court in NYC has found LimeWire (and its Chairman on a personal basis) liable for secondary infringment of copyright in Arista Records (and others) v Lime Group LLC (and Mark Gorton, Director) [2010] 06 CV 5936-KMW.
LimeWire is basically a sharing service for illegal content which like many similar sites attempted to argue that it was a mere facilitator for illegal activity and not really involved.
The issue appeared to turn on the question of whether or not LimeWire had induced its users to breach copyright and in this case the court found that it had. This judgement, hot on the heels of the Newzbin case, places a lot of the "sharing" networks on very thin ice when it comes to the question of legal liability. It seems that the copyright owners are having a good run at the moment as in the future VC''s and senior managers may looks carefully at these "sharing" platforms to determine if they may attract personal liability. Whether the long arm of the law can reach out to the "usual suspects" of YouTube, Ustream, Justin TV and the ISP''s remains to be seen.
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