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Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and the First Amendment

Alfred C. Yen

Boston College - Law School

Boston College Law School Research Paper No. 2000-03

The Internet offers the fastest reproduction and distribution of information ever known, presenting fundamental challenges to copyright law. Practically anyone with a personal computer can receive and send information over the Internet, and so practically anyone has access to copyrighted works and can duplicate them, adapt them, or disseminate them. From the perspective of a copyright holder, even a single innocent use represents a threat. This Article examines the controversial proposal that Internet Service Providers ("ISPs") be held liable for the copyright infringements of the subscribers. The Article takes the position that the existing case law considering ISP liability for subscriber copyright infringement - under theories of direct liability, vicarious liability, and contributory liability - thus far has struck an acceptable balance between the property interests of copyright holders and the First Amendment rights of subscribers. The Article supports this contention with an examination of the rationales underlying the closely analogous field of enterprise liability in tort. It then examines recent Congressional legislation - the Digital Millenium Copyright Act ("DMCA") - providing "safe harbors" for ISP liability. The Article concludes that the DMCA, unless properly interpreted, threatens to upset the balance struck by the case law by creating an incentive to unduly restrict the free speech of subscribers.

Number of Pages in PDF File: 57

Keywords: copyright, law, internet, service provider

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Date posted: September 5, 2000  

Suggested Citation

Yen, Alfred C., Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and the First Amendment. Boston College Law School Research Paper No. 2000-03. Available at SSRN: https://ssrn.com/abstract=236478 or http://dx.doi.org/10.2139/ssrn.236478

Contact Information

Alfred Chueh-Chin Yen (Contact Author)
Boston College - Law School ( email )
885 Centre Street
Newton, MA 02459-1163
United States
617-552-4395 (Phone)
617-552-2615 (Fax)

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