Responsibility vs. Liability

By: ladan on 29 July 2008
Posted in

The Digital Millennium Copyright Act (DMCA) was proposed to protect copyright owners while harboring companies from frivolous law suits. In particular, it exempts companies working with user generated data liability should their users post copyright infringed material. Section 512 (c) of the DMCA provides that “a service provider shall not be liable for monetary relief, …, for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network … if the service provider

      (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
      (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
      (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
      (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
      (C) upon notification, … responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

    March 13, 2007 Viacom filed a $1-billion law suit against YouTube in a New York federal court, alleging that YouTube has profited from hosting videos that infringe Viacom’s copyright which violates “copyright law and [falls] outside the online provider protections of the 1998 Digital Millennium Copyright Act (DMCA)."(1)
    It is noteworthy that section 512(c) of the DMCA further states that the limitation on liability shall apply only to any service provider who

      “(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and
      (B) accommodates and does not interfere with standard technical measures.”

    In this case, Viacom advocates and requires preemptive measures that “curb infringment”. Two issues come to mind. Firstly, feasibility issues: from a computer science point of view, detecting such material is no easy task and would certainly require advanced, revolutionary tools which translate into a hefty expenditure for YouTube. Secondly (and perhaps more prominently), legal issues: would the development and implementation of such tools be legal? Where is the line between re-mix and original work drawn? Doesn't this qualify as an infringement of Free speech?

    June 10, 2008 New York State Attorney General, Andrew M. Cuomo, signs an agreement with ComCast, AT&T Inc., AOL, Verizon Communications Inc., Time Warner Cable and Sprint to block sources of child pornography. The agreement strives to curtail access to child pornography by implementing a new system to rapidly identify child pornography images, respond to user complaints about child pornography, and block access to such images. "In addition to eliminating the Newsgroups, the ISPs have also agreed to purge their servers of all child pornography websites identified by the National Center for Missing & Exploited Children (NCMEC which also works closely Google in this regard)."(2)

    July 22, 2008: In a recent ruling (, the U.S. Court of Appeals for the Third Circuit granted a permanent injunction against enforcement of the Child Online Protection Act of 1998 (COPA) concluding that such a federal law is a violation of the First Amendment as it imposes “civil and criminal penalties on commercial website operators that publish sexually explicit material without also using credit card authentication or other technological measures to verify viewer age and block access by minors.” (3,4)

    What do all these cases have in common? Corporations, online liberties and their interplay. What's so interesting? One aspect that caught my eye was the emerging, voluntary cooperation of corporations which left me to ponder: Does this show a new trend of ensuring corporate social responsibility? Should the market and the will of the people be the beacon of responsibility and liberty in combination (or juxtaposition) with the more traditional penalties?