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New York Law Journal "Court Denies ISP Declaratory Relief on DMCA Protection' by Steve Kram

The Internet has become central to the lives of billions of people and is essential to the way the world does business. But at its heart, it is nothing more than a network for digital communication. Its value comes from its ability to connect users: to one another, to the services they want, and to the content they consume, create, and share. Facebook, Twitter, Instagram, and thousands of other services are described as "social" media because they are fundamentally designed to permit their users to communicate and share content. Even the crusty old Web gets its name from the "web" of hypertext links that interconnect content on servers around the world.

With this new environment come new legal and policy challenges, not the least of which is finding a balance between open access to information and the protection of privacy, intellectual property and other rights of users and content creators. As a practical matter, the issue often comes down to who should bear the burden of policing and protecting those rights.

Consider Internet service providers, or ISPs. These are companies like Comcast, Charter and AT&T that provide users with access to the Internet. What users do with that access is largely their own business. But what happens when someone uses the Internet—through an ISP—to do something illegal? Allocating culpability can be complicated. The user is culpable, certainly. But perhaps the ISP should be as well, depending on what role it played and what it knew or should have known. Drawing that line is a complex policy question that requires a careful balance—one that Congress has tried to strike with certain provisions of the Digital Millennium Copyright Act (DMCA).

The DMCA provides statutory protections for ISPs and other online service providers (OSPs, a category broader than ISPs). Among these are "safe-harbor" provisions that insulate them from liability for claims of copyright infringement if they fit certain statutory requirements. In a recent case, an ISP sought protection under two of these provisions, found in §§512(a) and (c).1 But in doing so, the ISP essentially asked the court to give it legal advice: whether the statute applied to it, and whether it was required to respond to certain kinds of DMCA take- down notices. See 17 U.S.C. §512(c)(1)(C). The court grappled with the question of whether it had the power to grant this kind of relief, and its carefully considered opinion provides some interesting insight into the current landscape of copyright protection under the DMCA. Read more.

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