When Is an ISP Liable for the Acts of Its Subscribers?

Everyone who wants to hop on the internet has to go through an internet service provider (ISP). ISPs are companies that act as a gatekeeper for access to the Web. Most ISPs are large companies like AT&T, Xfinity, and Verizon.

So what happens when a subscriber to an ISP behaves badly and causes an injury to someone else online—say, by copying that person's music without permission? Is the ISP responsible for the actions of its subscribers? Most people who've been injured, if given a choice, prefer to sue the person or entity with the "deepest pockets." ISPs tend to have much deeper pockets than their customers.

Are ISPs Similar More Like Publishers or Telephone Companies?

People who think ISPs should be financially responsible for the actions of their subscribers argue that ISPs are publishers, similar to a newspaper or magazine, and must take responsibility for the material on their servers. On the other side, ISPs argue that they are like telephone companies—simply carriers that provide a means of sending information. So far, Congress and courts have favored the ISPs' position and provided guidelines that permit responsible ISPs to avoid liability for the millions of bits of digital information passing through their portals.

Copyright Infringement

Online copyright infringement happens when a copyrighted work—such as a song, movie, artwork, or text—is copied, modified, displayed, or performed without the copyright owner's authorization. (To learn more about the essentials of copyright law, check out Copyright Basics FAQ.)

In the early days of the Internet (1995-1998), angry copyright owners tried using two theories against ISPs:

• the ISP contributed to the infringement ("contributory infringement"), or
• the ISP supervised and profited from the infringement ("vicarious infringement").

Digital Millennium Copyright Act

ISPs who claimed they couldn't possibly monitor everything that was said on hosted websites lobbied Congress for protection and, in 1998, President Clinton signed into effect the Digital Millennium Copyright Act (DMCA). Under Title II of the DMCA, ISPs can avoid legal liability if they follow "notice and takedown" procedures. These procedures require ISPs to take down unauthorized material when they receive notice of an infringement. (17 U.S.C. § 511 and following.)

Under the DMCA, to avoid liability the ISP must:

• not obtain financial benefit from the infringement
• not have actual knowledge or awareness of the infringement
• upon learning of an infringement, act quickly to remove or disable access to the infringement, and
• implement a policy of terminating the accounts of subscribers who are repeat infringers.

In addition to these and other requirements, the ISP must designate an agent to receive notices from copyright owners. Because designating an agent is key to an ISP's ability to avoid liability, it's essential that the ISP promptly send its agent's name and address to the U.S. Copyright Office and pay the registration fee. Learn more about locating and designating agents at www.copyright.gov.

The DMCA protections for ISPs extend not only to content that is stored on the ISP servers and storage devices, but also to an ISP's "information location tools," which are devices that help a user find or access sites, such as directories, pointers, and hypertext links.

If an ISP does not obey the DMCA provisions—for example, by failing to designate an agent or by neglecting to immediately remove infringing copy once notified—a copyright owner has the right to sue the ISP as a contributory or vicarious copyright infringer.