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Protecting Internet Communications

By Jonathan Bick
January 28, 2005

Law firms use Internet technology to communicate in ways that were simply not possible 10 years ago. This has allowed lawyers to share information as never before. More importantly, the technology associated with the Internet allows law firms direct control over Internet communications because they own the individual networks that allow information to be shared. This direct control brings increased liability for copyright infringement, unless firms comply with the Digital Millennium Copyright Act (DMCA) of 1998, codified in 17 U.S.C. 512. Compliance requires little investment of time or money. Similarly, e-mail protection is readily available at little or no additional cost.

Prior to the DMCA, courts analyzing a Copyright Act claim brought against an entity that facilitated communication by copying and re-transmitting messages considered first whether there had been infringement of a valid copyright: that is, whether there had been a violation of one of the five exclusive rights granted to copyright owners in the Copyright Act, such as copying the copyrighted material. Similarly, a claim of contributory or vicarious infringement, the two forms of secondary liability under traditional copyright law, normally required the simple proof of direct infringement by a third party.

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