Limitations on Liability (part 2 of 3)

This is the second of a three part series, entitled “What every romance author should know about copyright law online.”

Yesterday I explained that, under traditional doctrines, an author whose book has been put on the internet, unauthorized, and then downloaded, may have suits against three distinct types of entities: the user who uploads it and the user who downloads it (end users); the server who hosts the material, and the intervening network hubs that pass traffic.

Traditional doctrines, however, have been supplanted by immunity provisions found in the Digital Millenium Copyright Act, codified at 17 USC § 512. (The DMCA also implemented several sections that criminalize, among other things, the removal of DRM; those portions of the DMCA have nothing to do with our discussion today.)

So let’s go through our three types of groups, one by one, and see what the DMCA says.

1. The network hubs.

Under § 512(a), you cannot sue these people, ever. I would go into the language of the statute, but it’s boring, and all you need to know is that you can’t sue them. (As I said yesterday, this is a very good thing: otherwise, nobody would ever get internet access.)

2. The service providers.

Under § 512(c), service providers are immune from suit if all of the following conditions hold true:

(a) They do not have actual knowledge that the material is infringing (or if they do have actual knowledge, they act quickly to remove it). You might think “but they have actual knowledge that my book is on their website!” The answer is… probably, they do not. Most service providers have no idea what people put on their site. Furthermore, they often don’t want to know, and so never go looking. And even if they did actually know, you, the author, would often be hard-pressed to prove it–unless the site owner actually posted something like, “Thanks, Ruth, for posting that totally illegal copy of that book! I’ve been looking for it!”

(b) They are not aware of facts that would make it apparent that infringement had occurred. This is also very, very hard to prove. How can a website owner tell that someone’s copyright has been violated? The website owner doesn’t have a list of all the books that are out there. Even if someone puts up a notice saying, “Read the next Harry Potter book!” it may be that the person has an authorized license to distribute it (even though we believe no such thing exists, why would a service provider know that, and why would we want them to police it?), or that the book posted is not, in fact, a Harry Potter book, but a self-published book that someone wants people to read instead.

(c) They cannot receive a financial benefit directly from the infringement. Most service providers profit, at best, indirectly, by charging the user fees to store material.

(d) They must respond to DMCA takedown notifications promptly. This is the part I hear authors complaining about the most–the darned DMCA takedown notifications. Some authors spend hours and hours sending takedown notifications, and then complain that the DMCA takedown notification is the “only” thing they can do. Well, yes, and not even that. And, no. The answer is “yes, and not even that,” because filing a DMCA takedown notification only helps you to the extent the service provider takes down the material. And the service provider is only doing that because if they do, you can’t sue them. If a service provider says, “no, thank you, I will not take down the material,” your only response as an author is to say, “fine, I’ll sue you.” Not worth all that much. We’ll get to the “and no” later.

The last few requirements are often missed by people who skim statute subheadings. These actually aren’t contained in § 512(c); they’re in § 512(i).

(e) The service provider must have a policy in place for terminating repeat offenders, and must implement it. Hard to know, as an author, whether someone has actually complied with this.

and

(f) The service provider must accommodate, and not interfere with, standard technical measures for detecting infringement. There aren’t many ways that a service provider can fail to comply with this, but one of them might work like this: If you needed to have a user account in order to search a particular site, and if user accounts were free, and if you used your user account to identify piracy, they could not ban your user account to prevent you from detecting piracy. If they do, they probably lose their immunity.

If you’re getting the drift of this, it works like this: So long as  a service provider complies with your takedown notifications, you probably cannot sue the service provider. This is the point where some authors say, “That’s not fair! It leaves me with no way to protect myself!”

And that is wrong. Because of the people who acted in this case, two of them–the user who uploaded the material, and the user who downloaded the material–have no immunity at all under the law. Under § 512(h), authors have the right to get a subpoena from a service provider (once you’ve sent the takedown notification) asking the service provider to give up information identifying the alleged infringer. And once you have that information, you can sue them.

“But Courtney!” you are saying. “I don’t want to sue them! That would mean I have to hire an attorney and it would take time and everyone would hate me for suing readers and I would never be able to write anything! It would mean, if my suit were meritless, that I would have to shell out not only for my attorney, but for the other party’s, as well. It would mean discovery, and a lot of negative publicity. I don’t want to have to file a lawsuit to protect my rights. I want to press a single magic button once a year, and I want that to fix everything. How come there isn’t a magic button for piracy?”

To which I say: I hear you. I don’t want to sue anyone, either, ever. Suing people is lame and time consuming. (Heck, I don’t even bother sending take down notifications–I don’t see that it’s a productive way to spend my time. I have to admit I’m pretty utilitarian about these things, and studies show that piracy helps midlist authors in the long run, and I don’t actually believe that copyright is a natural right and so don’t feel like it’s theft anyway. This remark is parenthetical because I’m cabining off my own personal likes and dislikes away from the question of what the law says. Most people will disagree with this statement.)

But we don’t get a magic button, and there’s a reason for it: because magic anti-piracy buttons would be misused, and that would totally suck.

Tomorrow I’ll talk about a romance topic that’s near and dear to all our hearts: Why there is no magic button (to prevent piracy).