Washington Law Review


Sean Croman


Internet Service Providers (ISPs) risk substantial liability for passively contributing to subscriber-initiated acts of online copyright infringement. Cognizant of this problem, courts and Congress have taken differing approaches to limiting ISP liability. The Netcom court established that ISPs could store infringing material for eleven days without incurring liability for direct infringement, but did not similarly rule out liability for other forms of infringement. The Digital Millennium Copyright Act (DMCA) subsequently advanced the law of copyright by strengthening the protections enjoyed by copyright holders whose works face exploitation online, subject to four activity-specific "safe harbor" limitations on liability. For example, § 512(a) of the DMCA offers safe harbor for ISPs that store "intermediate and transient" copies of infringing material "in the course of" digital transmissions. In contrast, § 512(c) offers safe harbor for ISPs that store infringing material at the direction of users, subject to a strict notice-and-takedown requirement. In applying § 512(a), some courts consider the terms "intermediate" and "transient" to be facially ambiguous and look to the DMCA's legislative history for interpretive guidance. Relying heavily on a legislative committee report discussing a rejected version of the statute, courts in the Ninth Circuit have concluded that § 512(a) codifies the result of Netcom. Based on this conclusion, these courts endorse reliance on Netcom's facts as an example of § 512(a) activity. This Comment argues that courts should not consider or apply Netcom's facts as an example of intermediate and transient storage under § 512(a) for three reasons. First, the eleven-day storage of infringing material at issue in Netcom would not constitute intermediate and transient storage as subsequently defined by § 512(a). Second, courts that apply Netcom's facts as an example of intermediate and transient storage under § 512(a) obviate § 512(c)'s notice-and-takedown requirement. Third, the DMCA's text and legislative history confirm that Congress decided against codifying Netcom in favor of safe harbors that differ considerably from Netcom's holding. As a result, courts and prospective litigants must either wait for a predictable definition of intermediate and transient storage to develop through judicial interpretation of § 512(a)'s express terms or lobby Congress for a more definitive codified standard. ISP defendants might also seek timely relief under § 512(c) or assert common law defenses not codified within the DMCA's four comers.

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