Online service not liable for user's infringement

Daily Record (Rochester, NY), Apr 1, 2002 by Nora Jones

Can an Internet service provider (ISP) be held liable for copyright infringement because an Internet user turned someone else's data into an e-book and used the ISP to "store" the data online? In Harlan Ellison v. Robertson, the U.S. District Court for the Central District of California took a look at this issue where Ellison (a published author of fiction) sued the individual who scanned and converted his work, and also sued America Online (AOL), asserting that AOL directly, contributorily and vicariously infringed copies of his works by virtue of AOL being a USENET peer that participated in posting the infringing works.

The factual background shows that Robertson accessed the Internet through an ISP called Tehama County Online, and his USENET service was provided by RemarQ Communities, Inc. AOL is considered a USENET peer. "Peers in USENET enter into peer agreements, whereby one peer's servers automatically transmit and receive newsgroup messages from another peer's servers. Messages posted on one USENET server are quickly transmitted around the world. The result is a huge informational exchange system whereby millions of users can exchange millions of messages every day," explained the court. So, when an overenthusiastic fan uploads his favorite author's novels to a newsgroup on the Internet, what is the liability of an Internet service provider, such as AOL, for allowing the books to reside on their USENET server? Analyzing Eillison's allegations in detail, the district court ruled that "AOL's role in the infringement as a passive provider of USENET access to AOL users cannot support direct copyright infringement liability." Concluding that AOL's storage of Robertson's posts on its USENET servers constituted "intermediate and transient storage" that was not "maintained on the system or network ... for a longer period than is reasonably necessary for the transmission," the court found no liability on AOL's part.