| Internet Service Providers (ISPs), have been finding | | | | respect that.) But remember, the DMCA was |
| safe harbor within the DMCA for intellectual property | | | | created in 1998 with a few amendments thereafter. |
| infringements by end users on the Internet for years. | | | | Here again, the basic premise of safe harbor via the |
| Although these safe harbor tactics leave rights holders | | | | DMCA is that the service provider has no direct |
| out in the cold as they try to protect their investments | | | | knowledge, direct control or direct financial gain of or |
| in their IP assets, it is a legitimate argument on account | | | | from the "infringing activities" of end users on the |
| of an ISP's rights within the DMCA. ISPs only provide | | | | Internet or other network. The MMS pipeline was |
| the access to the Internet where you can find and | | | | deployed around 2003 by operators of mobile |
| download all kinds of things, including copyrighted | | | | networks, (hmmm think about that). See no evil, |
| materials that are also known as assets to rights | | | | speak no evil, make money? |
| holders. | | | | Here's another excerpt from the DMCA: |
| However, the wireless carrier's use of safe harbor | | | | Limitation for Information Residing on Systems or |
| within the DMCA is a illegitimate argument when you | | | | Networks at the Direction of Users |
| notice the fact that they have built a dedicated pipeline | | | | Section 512(c) limits the liability of service providers for |
| that specifically transports copyrighted materials. The | | | | infringing material on websites (or other information |
| illegitimacy continues when you notice that they are | | | | repositories) hosted on their systems. It applies to |
| making a direct financial gain in transporting these | | | | storage at the direction of a user. In order to be eligible |
| copyrighted goods. Multimedia messaging or MMS is | | | | for the limitation, the following conditions must be met: |
| the name of this new and dedicated pipeline that will | | | | ! The provider must not have the requisite level of |
| one day transport much richer multimedia, peer2peer. | | | | knowledge of the infringing activity, as described below. |
| Please do the math. | | | | ! If the provider has the right and ability to control the |
| The basic premise of safe harbor via the DMCA is | | | | infringing activity, it must not receive a financial benefit |
| that the service provider has no direct knowledge, | | | | directly attributable to the infringing activity. ! Upon |
| direct control or direct financial gain from the alleged | | | | receiving proper notification of claimed infringement, the |
| infringements. Hear no evil, speak no evil, do no evil. | | | | provider must expeditiously take down or block |
| Here are a few excerpts from the DMCA: | | | | access to the material. |
| TITLE II: ONLINE COPYRIGHT INFRINGEMENT | | | | (end excerpt) |
| LIABILITY LIMITATION | | | | Ok, now we're getting down to it. Anyone that |
| Title II of the DMCA adds a new section 512 to the | | | | studies law knows that it is all about the best argument |
| Copyright Act3 to create four new limitations on liability | | | | and rarely about right vs wrong. First, notice that the |
| for copyright infringement by online service providers. | | | | title refers to – Systems or Networks at the |
| The limitations are based on the following four | | | | Direction of Users. Doesn't this appear to be what |
| categories of conduct by a service provider: | | | | wireless carriers provide? A mobile network is a |
| 1. Transitory communications; | | | | separate communications system that just "meshes" |
| 2. System caching; | | | | with the Internet. So, we'll argue that this is exactly |
| 3. Storage of information on systems or networks at | | | | where these mobile network issues fit. |
| direction of users; and | | | | Repository – could that be a mobile device? Of |
| 4. Information location tools. | | | | course it is! |
| New section 512 also includes special rules concerning | | | | Does the service provider, (wireless carrier) have |
| the application of these limitations to nonprofit | | | | knowledge of the infringing activity? Well, if the |
| educational institutions. The failure of a service | | | | provider built a dedicated MMS pipeline it is probably |
| provider to qualify for any of the limitations in section | | | | safe to assume they know there is MMS in this |
| 512 does not necessarily make it liable for copyright | | | | pipeline. |
| infringement. The copyright owner must still | | | | Is the provider receiving a direct financial benefit from |
| demonstrate that the provider has infringed, and the | | | | this MMS being transported on the mobile network? |
| provider may still avail itself of any of the defenses, | | | | Yes, of course. That is why they built the MMS |
| such as fair use, that are available to copyright | | | | pipeline. |
| defendants generally. (Section 512(l)). | | | | Can they stop the infringing activity? Well, considering |
| (end excerpt) | | | | they are a part of the infringing activities the answer |
| Now, even with just these snippets from the DMCA | | | | would be yes. They could simply close the MMS |
| we can see how the ISPs have been legitimately and | | | | pipeline or simply compensate the rights holders in |
| successfully finding safe harbor within the DMCA all of | | | | order to stop the infringing activities. |
| these years. But did you notice how the heading | | | | Did they take down or block the infringing activities |
| says - ONLINE COPYRIGHT INFRINGEMENT | | | | when notified? It has been reported by Luvdarts |
| LIABILITY LIMITATION? | | | | LLC, a California based producer of MMS content that |
| Here's another excerpt from the DMCA: | | | | the wireless carriers notified of infringements of |
| Limitation for Transitory Communications | | | | Luvdarts LLC's content did not take down or block the |
| In general terms, section 512(a) limits the liability of | | | | infringed content. It appears the only way they could |
| service providers in circumstances where the provider | | | | possibly block it is to shut down the entire MMS |
| merely acts as a data conduit, transmitting digital | | | | pipeline, which contains Luvdarts LLC's copyrighted |
| information from one point on a network to another at | | | | MMS content along with everybody else's copyright |
| someone else's request. This limitation covers acts of | | | | protected MMS content! Just like an injunction would |
| transmission, routing, or providing connections for the | | | | do. |
| information, as well as the intermediate and transient | | | | The bottom line is, they cannot pass this DMCA litmus |
| copies that are made automatically in the operation of | | | | test if the - Systems or Networks at the Direction of |
| a network. In order to qualify for this limitation, the | | | | Users section is indeed applicable. |
| service provider's activities must meet the following | | | | It is important to remember that MMS was deployed |
| conditions: | | | | by wireless carriers on mobile networks after the |
| ! The transmission must be initiated by a person other | | | | DMCA, around 2003. See no evil, hear no evil, make |
| than the provider. | | | | money? Obviously, if the wireless carriers built this |
| ! The transmission, routing, provision of connections, or | | | | pipeline for the purpose of transporting MMS they |
| copying must be carried out by an automatic technical | | | | surely know what is in this pipeline. Copyright |
| process without selection of material by the service | | | | protection subsists in all MMS. |
| provider. | | | | So why would any rights holders with basic common |
| ! The service provider must not determine the | | | | sense allow the wireless carriers to get away with |
| recipients of the material. | | | | this? |
| ! Any intermediate copies must not ordinarily be | | | | Try this for an answer; the reason rights holders are |
| accessible to anyone other than anticipated recipients, | | | | allowing the wireless carriers to get away with |
| and must not be retained for longer than reasonably | | | | transporting MMS without fair compensation to rights |
| necessary. | | | | holders is because the media companies have not |
| ! The material must be transmitted with no modification | | | | produced much if any commercial MMS content for |
| to its content. | | | | this market - so they haven't noticed and the general |
| (end excerpt) | | | | public doesn't really care (yet)! But, you would think |
| Wow, now this appears to be a slam dunk case for | | | | someone within those ranks could see where this was |
| ISP's AND mobile network's safe harbor. (I wonder | | | | going and maybe even rally to help establish a new |
| why there is nothing pro-rights holder within the | | | | revenue stream while it is still doable. But that's |
| DMCA? But then, the law is the law and we have to | | | | another story. |