The Relationship between the ISP Safe Harbors and the Ordinary Rules of Copyright Liability

In 1998, Congress added Section 512 to the U.S. Copyright Act, creating a set of safe harbors that protect online service providers (OSPs), under certain conditions, from liability for copyright infringement that might occur in the course of specified online activities. Some commentators have viewed two of these safe harbors, sections 512(c) and 512(d), as departing from the ordinary copyright regime by protecting OSPs from claims of direct infringement by the OSP itself, but following the ordinary copyright regime by allowing secondary liability claims against an OSP for infringements committed by users of the OSP’s services. This Article suggests that this view is not entirely accurate. Part I suggests that the safe harbors’ statutory protection for OSPs against direct infringement claims may not be particularly significant, because ongoing judicial development applying copyright law to conduct unprotected by the safe harbors suggests that an OSP’s potential direct infringement liability for its routine functions may not be particularly great. Part II compares the elements of common law copyright claims for contributory infringement and vicarious liability with the provisions of sections 512(c) and 512(d) that disqualify an OSP from a safe harbor based either on its level of knowledge about, or control over, a user’s infringing activity. Although the conditions that an OSP must meet to qualify for these safe harbors closely parallel the elements of the common law secondary liability claims, they differ in subtle but important ways. As a result, in some instances the safe harbors will insulate an OSP from secondary liability claims that would, in the absence of section 512, succeed. The Article therefore concludes that the section 512 safe harbors may be more valuable to OSPs facing secondary liability claims than they initially appear, and less valuable to those facing direct infringement claims