Best of the ISP-Lists

Are We Liable?

Several members of the ISP-Webhosting discussion list talk about when an ISP is responsible for a client's content if, for example, it breaches copyright.

[December 9, 2002]

Recently, on the ISP-Webhosting discussion list, CU asked the group for advice on dealing with copyright infringement claims:

"I have someone e-mailing me that another someone we host is violating his copyright—stealing his content. He says to shut the site down or he'll report us to the FBI—among other authorities.

Threats aside, what is the responsibility of the webhost if someone claims that a copyright is infringed? Do we exposure ourselves to liability for not taking it down just because some person claims another is infringing his copyrights?"

[JB advised] "Yes, you can get sued. But you can also get sued because you're wearing the wrong color tie today.

The first step in dealing with such matters as this is for you to take his name and number and forward it to the customer. Have him e-mail you any supporting information so that you can pass it along to your customer.

The extent of your liability is probably pretty small, but the mere threat of having to defend yourself in court is enough to make you cry. And these people know this all too well. On the other hand, the fact that he's going to complain to the FBI tells me that he's blowing smoke. We all know that unless you're hosting underground terrorist sites, they really do not want to spare the time to deal with this joker.

Placate him, tell him you'll give his info to the customer and see what happens. When it comes down to it, you may need to make your own judgment call as to whether you think this is a problem for your business, or not."

[AS explained] "We have seen this same issue a few times. Usually we contact our client, and almost always it turns out that they were (knowingly) infringing on someone's copyright, and quickly agreed to take the content down—end of story.

But the basic question remains: is the host liable?

In my humble opinion, under no circumstances should the webhost be liable simply because they are hosting the site or providing DNS, e-mail or other such services. If they actually designed the site or if they are business partners with the site owner—that's a different story. But there should be no liability for just hosting it.

However, that having been said, it really does not matter whether the webhost is liable or not. The practical, real-world question is: How much is the webhost willing to spend to prove in court that they are not liable? There are enough attorneys out there who know the answer to this question.

Before the situation gets really out of hand, it would really behoove webhosts and ISP's to get together and try and figure out some legal (legislated) protection to nip the problem in the bud so that attorneys do not even think of suing webhosts just because they host the web site. I think this is a pretty important issue facing web hosts today."

[SG advised] "Check out the DMCA stuff too. I think if you register you limit your exposure as well."

[ED recommends] "Consult an attorney for correct advice.

It is my understanding that, if someone uses the DMCA to demand something be taken down, you must do so; if not, you can be held liable for damages. Your customer can file a counterclaim.

Again, consult an attorney."

—End