Advanced Copyright Issues on the Internet - Fenwick & West LLP

obligation of providing Defendants with lists of titles, even if there is a cost to Defendants ofsecuring the lists of titles from the commercial vendor or third party.” 16775. Limitations of Liability of Online Service Providers in the DMCAFrom late 1995 through May 1996, OSPs, telecommunications carriers and otherdistributors of online information, content providers and software companies negotiatedintensively to reach a consensus on proposed legislation that would provide various statutorysafe harbors with respect to the liability of online providers. 1678 The parties were unable to reachagreement for legislation in the 103rd Congress. The debate among the various industrysegments was ignited again in connection with the WIPO copyright treaties in Geneva inDecember of 1996.(a) History of the Various Legislative EffortsA number of bills were then introduced in Congress that would limit the liability ofOSPs. The first to be introduced was by Rep. Coble on July 17, 1997 (H.R. 2180). This billwould have exempted OSPs from direct or vicarious copyright liability solely based on thetransmission or providing of access to online material, and eliminate any damage remedy forcontributory liability, limiting plaintiffs to injunctive relief. The criteria for exemption were thatthe OSP: (a) not initially place the material online; (b) not generate, select, or alter the contentof the material; (c) not determine the recipients of the material; (d) not receive a financial benefitdirectly attributable to a particular act of infringement; (e) not sponsor, endorse, or advertise thematerial; and (f) either not know or be aware by notice or other information indicating that thematerial is infringing, or be prohibited by law from accessing the material.The second bill to be introduced was S. 1146, which, in addition to the WIPO treatyimplementation provisions discussed above, also contained provisions limiting liability of OSPs.S. 1146 adopted a different approach to OSP liability than H.R. 2180. It contained three majorprovisions. First, it provided blanket exemptions from direct, vicarious or contributory liabilityfor OSPs based on the mere provision of defined electronic communications network services orfacilities, or on the transmission of private electronic communications, including voicemessaging or electronic mail services or real-time communication formats, including chat rooms,streamed data, or other virtually simultaneous transmissions. Second, it provided exemptionsfrom direct, vicarious or contributory liability for the provision of the following informationlocation tools: a site-linking aid or directly, including a hyperlink or index; a navigational aid,including a search engine or browser; and the tools for the creation of a site-linking aid. Third, itprovided immunity from direct, vicarious or contributory liability to OSPs for stored third partycontent, unless upon receiving notice of infringing material that complied with certain definedstandards, the OSP failed expeditiously to remove, disable, or block access to the material to theextent technologically feasible and economically reasonable for the lesser of a period of ten daysor receipt of a court order concerning the material.1677 Id. at p. 16.1678 A summary of the issues and proposed legislative provisions may be found in K. Stuckey, Internet and OnlineLaw § 6.10[5], at 6-96 to 6-98 (2008).- 365 -