Protecting Internet Communications

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.

At that time, law firms were normally able to cope with such regulation because they did not usually act as common carriers. Notwithstanding the reality that law firms that facilitate Internet communications perform as common carriers, they are not by and large entitled to comprehensive liability protection. Other common carriers, such as telecommunications providers, are routinely given liability protection for forwarding others' communications. See, eg, 47 U.S.C. 153(10) (2002), which defines a common carrier in the context of telecommunications regulation and immunity. Instead, with respect to the area of protection from liability for users' copyright infringement, law firms that manage their own Internet communications are subject to an intricate set of regulations enumerated in the DMCA. These DMCA conventions allow courts to grant protection from infringement for the firms that qualify as an Internet Service Provider (ISP).