Advanced Copyright Issues on the Internet - Fenwick & West LLP

The district court then turned to application of the Section 512(a) safe harbor. The courtfirst noted that Section 512(a) “does not require ISPs to remove or block access to infringingmaterials upon receiving notification of infringement, as is the case with subsections (c) and(d).” 1712 The plaintiff argued that AOL was not engaged in “intermediate and transientstorage” 1713 required under Section 512(a) because it maintained Usenet materials on its serverfor fourteen days. The court posed the issue under Section 512(a) as follows: “Certain functionssuch as the provision of e-mail service or Internet connectivity clearly fall under the purview ofsubsection (a); other functions such as hosting a web site or chatroom fall under the scope ofsubsection (c). The question presented by this case is which subsection applies to the functionperformed by AOL when it stores USENET messages in order to provide USENET access tousers.” 1714 The court answered that Section 512(a) applies, based primarily on the fact that thelegislative history of the Section 512(a) safe harbor expressly noted that the exempted storageand transmissions under that section “would ordinarily include forwarding of customers’ Usenetpostings to other Internet sites in accordance with configuration settings that apply to all suchpostings.” 1715 The court further ruled that storage of the Usenet postings for fourteen days wasnot too long to disqualify the storage as intermediate and transient. The court noted that Usenetmessages had been stored for eleven days in the Netcom case, and that three days was aninsufficient difference to distinguish the present case from Netcom. Accordingly, the court ruledthat AOL’s Usenet storage was “intermediate and transient.” 1716The court further ruled that AOL had satisfied the remaining requirements of Section512(a). The transmission of the plaintiff’s newsgroup message was not initiated by AOL, AOLdid not select the individual postings on the alt.binaries.e-book newsgroup (and the fact thatAOL decided not to carry every newsgroup did not constitute selection of the specific materialgiving rise to the claim of infringement 1717 ), AOL did not select the recipients of the material, 1718eradicate, and punish infringement on their networks, then most if not all of the notice and takedownrequirements of the subsection (c) safe harbor would be indirectly imported and applied to subsections (a) and(b) as well. This would upset the carefully balanced, “separate function-separate safe harbor-separaterequirements” architecture of the DMCA.” Id. at 1066 n.15.1711 Id. at 1066.1712 Id. at 1068.1713 Clause (4) of Section 512(a) requires that “no copy of the material made by the service provider in the course ofsuch intermediate or transient storage is maintained on the system or network in a manner ordinarily accessibleto anyone other than anticipated recipients, and no such copy is maintained on the system or network in amanner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary forthe transmission, routing, or provision of connections.”1714 Id. at 1068.1715 Id. at 1069-70 (quoting H.R. Rep. 105-551(I) at p. 24).1716 189 F. Supp. 2d at 1070.1717 To impute selection of the infringing material to the ISP, “the better interpretation of [512](a)(2) is that the ISPwould have to choose specific postings, or perhaps block messages sent by users expressing opinions withwhich the ISP disagrees.” Id. at 1071.1718 To impute selection of the recipients of the material to AOL, “the better interpretation is that AOL would haveto direct material to certain recipients (e.g. all AOL members whose names start with ‘G’) but not others.” Id.- 374 -