Friday, June 1, 2012

DNS server operator liability under DMCA

Many DNS servers operators receive threatening legal letters alleging DMCA violations. This may happen in a situation where a site owner may be a file hosting service where a user might have uploaded a copyrighted video.

DNS is what maps domain name to IP addresses for Internet domains. This way a web browser can know what server to communicate with. At the DNS level, operators do not have access to materials hosted by users systems and no infringing materials enter or leave the system directly.  DNS operator’s only recourse is to take down an entire site, because there is no way to target specific content with any precision, without potentially disrupting non-infringing material.

DNS servers operators are not liable for copyright infringement under DMCA because Section 512(a) protects service providers who are passive conduits for “transitory digital network communications,” even if infringing traffic passes through their networks.
To qualify as a provider of “transitory digital network communications,” the infringing material must be transmitted at the request of a third party to a designated recipient, handled by an automated process without human intervention, not modified in any way, and only temporarily stored on the system.
SOPA and PIPA proposed imposing copyright infringement liability on DNS servers, so keep your ears open as to the latest legal developments and to consult an attorney. Nevertheless, the law as it stands as of this writing is on the side of DNS servers’ operators. Even though a DNS server owner is not liable for website owner’s alleged infringement, it is a good policy to contact the site owner and ask them to resolve the issue. In responding to threatening legal letters, you can cite 17 USC § 512(a) in your defense, so they’ll know you are aware of your rights and are not an easy target.

(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.