Advanced Copyright Issues on the Internet - Fenwick & West LLP

Hearings were held in Sept. of 1997 on both H.R. 2180 and S. 1146. These hearingsrevealed lingering conflict between service providers and copyright owners on liability issues.Rep. Goodlatte led continuing negotiations between the content providers and OSPs, and tofurther a comprise, he and Rep. Coble introduced on Feb. 12, 1998 a substitute for H.R. 2180,entitled the “On-Line <strong>Copyright</strong> Infringement Liability Limitation Act” (H.R. 3209).On April 1, 1998, the House Judiciary Committee approved the substance of H.R. 3209,but folded it into the pending WIPO implementation legislation, H.R. 2281. Subsequently, basedon continuing negotiations, an agreement was finally reached between service providers andcopyright owners with respect to the proper scope of liability for online infringements ofcopyright. H.R. 2281 was then amended to include this compromise agreement.Meanwhile, similar actions were taking place in the Senate. The provisions of S. 1121,implementing the WIPO treaty, were combined with a new title embodying the compromiseagreement between service providers and copyright owners with respect to liability. 1679 Thecombined Senate bill was denominated S. 2037, and was unanimously approved by the SenateJudiciary Committee in April of 1998 and adopted by the full Senate in May of 1998.Both H.R. 2281 and S. 2037 contained the same substantive provisions with respect toOSP liability, which were ultimately adopted in the DMCA.(b) The OSP Liability Provisions of the DMCAThe liability provisions are contained in Title II of the DMCA. Title II seeks to clearlydefine the conditions under which an OSP’s liability for infringements that occur on the OSP’ssystems or networks will be limited. Specifically, Title II defines four safe harbors that arecodified in a new Section 512 of Title 17. If the OSP falls within these safe harbors, the OSP isexempt from monetary damages and is subject only to carefully prescribed injunctive remedies.As the legislative history states, “New Section 512’s limitations on liability are based onfunctions, and each limitation is intended to describe a separate and distinct function. … [T]hedetermination of whether a service provider qualifies for one liability limitation has no effect onthe determination of whether it qualifies for a separate and distinct liability limitation underanother new subsection of new Section 512.” 1680 This principle was codified in Section 512(n)of the DMCA, which provides: “Subsections (a), (b), (c), and (d) describe separate and distinctfunctions for purposes of applying this section. Whether a service provider qualifies for thelimitation on liability in any one of those subsections shall be based solely on the criteria in thatsubsection, and shall not affect a determination of whether that service provider qualifies for thelimitations on liability under any other such subsection.” 16811679 Sen. Patrick Leahy and Sen. John Ashcroft drafted the compromise agreement for incorporation into pendinglegislation.1680 H.R. Rep. No. 105-551 Part 2, at 65 (1998).1681 17 U.S.C. § 512(n).- 366 -