Copyright in the Library Is Your Library an Internet Service Provider under the Digital Millennium Copyright Act?

Title II of the Digital Millennium Copyright Act (the "DMCA") limits the liability of Internet Service Providers ("ISP") for certain infringements. Congress clearly intended this new law to protect large ISPs like America Online and CompuServe. It also clearly protects Universities like our University of Texas System component institutions that provide Internet services to their students, faculty and staff. The definition of a "service provider" is so broad, however, that it includes public libraries that do no more than make available to the public a computer connected to the internet. Here's part of the definition of "service provider" from the statute:

(k)(1)(B) As used in the section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therfor, and includes an entity described in subparagraph (A).

The important words are "a provider of online services or network access." That's pretty broad. This is not necessarily bad news, though -- it means libraries have a choice.

The DMCA gives ISPs some protection from the usual remedies that a copyright owner is entitled to when his or her rights have been infringed. For example, a copyright owner whose rights have been infringed can ask the court to award it alot of money - either the amount by which the owner was actually harmed, such as the value of lost sales or lost licensing revenues (the "actual damages"), or any amount within the range that the statute says an owner is entitled to ("statutory damages") depending on whether the infringer knew good and well that what he or she was doing was wrong, or was truly unaware and had good reason to think the infringing actions were authorized as a fair use. Copyright owners are also entitled to certain kinds of injunctions: court orders that bar the infringer from carrying out actions in the future that would create similar problems for the copyright owner or others. The DMCA takes away from copyright owners most of these remedies on the condition that ISPs agree to abide by its provisions. In effect, it creates a different way other than through lawsuits for copyright owners and ISPs to handle alleged infringements involving materials passing through or residing on ISP's servers.

There is no requirement that an entity entitled to take advantage of these liability limitations must take advantage of them, either in general, or even after the entity has registered an agent. Compliance with the statute's provisions is completely voluntary. Even AOL could ignore this statute if it wanted to. The steps for taking advantage of the limitations are somewhat cumberson and they require thoughtful action now and in the future, when the ISP receives a notice from a copyright owner that conforms with the requirements for notices under the statute. It may not be worth all the trouble if the benefit is very small. So, let's explore the benefits and the process of complying with the statute, so that it's possible to weigh the two and decide whether to register as an ISP, and even after you've registered, whether to follow the statute's procedures to take advantage of the liability limitations in a particular case.

The DMCA provides liability limitations for the following kinds of activities:

• "Conduit activities" that are largely automatic activities of computers connected to the Internet and for which there is no explicit requirement to register an agent to obtain the law's protections:
  
  
  • transmitting or routing material through a system or network controlled by or for the service provider;
  • providing connections for material through such a system or network;
  • intermediate and transient storage of that material in the course of transmitting, routing or providing connections
  • intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider ("system caching")
    
    
• Long-term storage of information on the service provider's system or network, for which you must register an agent to obtain the law's protections:
  
  
  • storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider
  • referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link
    
    
• Taking material down based on an allegation of infringement or knowledge of facts or circumstances from which infringement is apparent or putting it back up based on as assertion of misidentification or mistake on the complainant's part
  
  

An ISP's benefits under the DMCA will vary depending on the extent of the services the ISP provides and the type and numbers of users of those services. For example, a small library that provides the public with access to the Internet at one or more computer terminals does not appear to take any of the actions for which the DMCA requires the registration of an agent in order to obtain relief. If the library has its own server with a homepage on which it provides links to external resources, it is taking actions for which it could be eligible for relief under section (d) of the new law that addresses information location tools. If the library permits the public to post pages or other digital materials on its servers, it is taking actions for which it could be eligible for relief under section (c) of the new law related to user information on a system. Both of those sections require ISPs to register an agent in order to qualify for protection. The more exposure a library has to allegations of infringement that stem from the covered activities, the more benefit the library will get from claiming to be an ISP, registering an agent and following the procedures that allow it to take advantage of the law's limitations.

But now for the downside: It is not easy to comply with the law. It requires a certain level of technical ability, careful adherence to detailed procedures and in some cases, a modest amount of legal analytical ability. Please read, "Complying with the Digital Millennium Copyright Act: Responding to Notices of Alleged Infringement" for the law's requirements. This document was written for the University of Texas System component institutions, but the rules for complying are the same whether the ISP is AOL, UT System or the public library in Akron, New York with its single Mac connected to the Internet.

As you can see, it takes considerable time and energy to comply with this law. For starters, someone has to read the law and figure out what it says to do. Then, someone has to do it all. Will it be worth it? Will your library receive 1 notice each year or 100 or 1000? It is fairly painless to simply register an agent. It's what the agent has to do that is detailed and cumbersome. It might be advisable if your library performs at least one or more activities for which it would be eligible for relief under the DMCA to register an agent and bookmark these URLs detailing what the agent is supposed to do. Maybe your agent will never got a notice! There does not seem to be any downside to merely registering an agent, unless unscrupulous copyright owners use the publicly available list of agents to send form notices alleging spurious infringements. Actually, the law provides sanctions against such actions, so that's not likely to happen. For state libraries, it probably is advisable to include a statement that by registering, the library does not waive its state soveriegn immunity under the 11th Amendment to the U.S. Constitution. Remember, even if you register an agent, you do not have to follow the procedures in any particular case. As described near the end of "Complying with the Digital Millennium Copyright Act," there are many ways to address allegations of infringement, and you always have a choice about how to handle such matters. The protections of this law are nice, but they may not be so attractive as to make their attendant detailed procedures the only practical way to respond.

Who should be involved in the decision whether to register an agent and in training the agent to respond to infringement notices? This issue involves reducing of the risk of legal liability, so good candidates to make the decision would be your library's risk managers or legal department and your upper level administrators who oversee fiscal responsibilities. You may also need someone who understands and can identify the activities covered by the DMCA that the library is undertaking if the legal and administrative persons are unfamiliar with Internet services and the special jargon associated with them.

Questions to Guide Decisionmaking about ISP Status

Does your library:

1. have computers connected to the internet?
2. make computers connected to the Internet available to the general public?
3. operate servers on the Internet?
4. place its own materials on its own servers on the Internet?
5. permit its patrons to place materials on servers operated by the library?
6. have pages on its servers that contain information locations tools such as (i) directories, indices, references, pointers, or hypertext links to materials that are not on the library's servers ("external materials") or (ii) a user interface with search capabilities that would return results to the user that include external materials?

If you can answer yes to questions 5 or 6, your activities are covered by the parts of the DMCA that require you to register an agent, so you may benefit from registering an agent and training the agent to respond appropriately to notices alleging infringement. If you can only answer yes to questions 1 through 4, your activities are not among those that the DMCA explicitly requires registering an agent in order to obtain the law's protections and you are unlikely to derive any benefit from registering an agent.

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