This is a follow-up posting to “Coffee, Tea, or Copyright Infringement” –https://dietrolldie.com/2012/03/21/coffee-tea-or-copyright-infringement-media-products-inc-v-does-1-31-111-cv-02299-bah-dc-troll-meiers/
Based on the Troll’s statements in the response (Troll_Response_02299(DC)) to Doe #1 (Mrs. Bloom) motion to quash, I wanted to revisit the area of the “Safe Harbor” provision of the 1998 Digital Millennium Copyright Act (DMCA). This provision is codified (Law) in 17 USC § 512 – Limitations on liability relating to material online (http://www.law.cornell.edu/uscode/text/17/512). The provision protects the “Service Provider” from liability as long as they take certain actions. Here is what the 17 USC § 512 defines as a “Service Provider”:
(1) Service provider.—
(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
For most of use, the term service provider means the ISP that we get our Internet access from at home (COMCAST, etc.). This provision clearly covers the Coffee House, as it provides a service to their customers. In his response, Mr. Meiers agrees the Coffee House is a service provider and is covered by the Safe Harbor provision. He claims this provision doesn’t apply only because the Coffee House didn’t impose “safeguards” on customer use of the Internet connections. This is a weak argument, as the safe harbor provision (see below) does not state the service provider has to take these steps.
Furthermore, it appears that none of the “safe harbor” provisions in copyright law apply because the coffee house benefits financially from the WiFi offering, as their website states on every page in the right hand column “Wifi (with purchase).” Exhibit 1, website of Soho Tea and Coffee.
Section “(c) Information Residing on Systems or Networks At Direction of Users” states that a service provider will not be liable if:
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
So this means that the Coffee House (Mrs. Bloom) is not liable if:
- Didn’t have knowledge that the alleged infringement occurred
- Took actions to remove or disable access to the infringing material
- Didn’t benefit financial from the infringing activity
I don’t know if any DMCA take-down notices were filed with the Coffee House, but based on previous Troll/Porn Content Owner actions, I will say “NO.” The first thing Mrs. Bloom probably got was a letter from her service provider concerning the subpoena for her personal information. If the letter from her service provider didn’t provide enough details of the alleged activity, then it is going to be hard for her to search her computer for evidence of the movie file or take steps to secure her network.
To continue to be protected by the safe harbor provision, Mrs. Bloom should try to locate the movie in question, as well as review her security setting on the WiFi access point the Coffee House uses. Documenting all this is also very important especially if the Troll tries to claim otherwise. Depending on what type of WiFi access point they use, they may be able to prevent certain protocols from running across their network. As this type of preventative action is not perfect, advanced computer users would still be able to circumvent it and access copyright protected material. The important thing is that the Coffee House takes some steps and not ignores the allegations. Ignoring the allegation and doing nothing is what will get a service provider in trouble and make them liable.