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9/25/2003
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The Privacy Lawyer: The Magical World Of Music Online

Now we know the music industry is going after teenagers. But employers need to be prepared, too, in case a subpoena arrives from the RIAA.

If your company or your employer offers E-mail accounts or Internet access, you may find yourself on the other side of a subpoena request. Or if someone who meets you online wants to find out who you really are offline, it may affect you more than you realize.

The Digital Millennium Copyright Act was adopted in 1998 in response to concerns by copyright owners that the Internet was being used for wholesale piracy. It's often said that no one really understands the DMCA, especially those involved in its negotiation and drafting.

In 1998, the vicarious liability of ISPs for copyright infringements being hosted on their networks was unsettled. A compromise among the various factions was reached at the behest of the ISPs which allowed them to escape claims for vicarious liability as long as they cooperated with the copyright holders when they learned that copyright infringements were being hosted on their networks. Two related provisions were drafted into the new law to deal with this.

First, the ISPs were required to disable access to a site or portion of a site that contained the infringed materials upon receiving the requisite notice from the copyright holder. This is called the "notice and take down" provision.

Under "notice and take down," the copyright holders, or someone acting on their behalf, send a notice to the DMCA agent for the ISP or hosting company stating that they're the copyright holder (or person acting on their behalf) and that their copyrighted content is posted or stored at a particular online location. The ISP or hosting company then confirms the existence of the purloined content at the site and disables access to the site pending final determination of the dispute.

This provision has been used since its adoption. While some abuses have been noted, implementation of the take-down practice involves the service provider confirming the existence of the infringed content on its servers before disabling access to the site. For example, if Viacom sends a DMCA notice to EarthLink, EarthLink can view the content and confirm that the images are of SpongeBob SquarePants, or that the images are of Amanda's square-shaped bath sponge. There is little likelihood of confusion or mistake when the ISP can view the content and confirm a potential infringement.

The second legal provision, 512(h), is related to the first. The copyright owners need to know how to contact the people who own the site hosting or storing the pirated content. So an innocuous provision, Section 512(h), was drafted that allows copyright holders, or those acting on their behalf, to fill out a form, pay a fee, and obtain the contact information behind the site's IP address from the ISP.

Compliance with the take-down provisions and 512(h) are what a service provider must do to escape vicarious liability for the infringing activities of its subscribers and users.

Until 2002, this wasn't a problem, since 512(h) was very rarely used by anyone until the RIAA came up with a novel theory to apply it to the P2P environment and obtain the identities of everyone who is sharing music online.

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