Section 512 (Online Copyright Infringement
Liability Limitation Act)
Questions to Consider on First Reading
1. What was the main issue with which Section 512 was intended to
deal? Was it primary (direct) liability, secondary liability, or
both? Does the language of the statute make this clear?
2. What is the effect of Section 512 on the "federal common law"
of direct and secondary liability for copyright infringement, under such
decisions as Playboy v. Frena, Netcom, and Napster?
How much of those decisions remains good law, and under what circumstances?
3. Is Section 512 a limitation on liability (as its short title
suggests) or a limitation on remedies? Could Section 512 prevent
a copyright holder from obtaining a declaratory judgment that his or her
copyright had been infringed? An injunction? what kind?
4. Section 512's conceptual foundation appears to be the notion
that service providers act as passive "conduits" of content provided by
others and therefore should have limited (or no) responsibility for the
infringing character of that content. How well does the language
of Section 512 capture and effectuate this concept? Are there cases
where language and concept fail to coincide? Are there cases in
which the statute offers protection where the service provider ought to
be responsible? Are there cases where it fails to offer protection
even though the service provider ought not to be responsible?
5. Will Section 512 make your life as a lawyer advising a service
provider easier or harder? What would you do differently if Section
512 had not become law? Is the law clearer now that Congress has
adopted Section 512? Are uncertainty and service providers' legal
expenses reduced, as Congress apparently hoped?
6. Is Section 512 well drafted to cover a nation of 270 million
people and an Internet with over 10 million Websites at a time of unthinkably
rapid technological change? Are its provisions too detailed and
technology-specific to stand the test of time? Will Section 512
become obsolete in whole or in part as technology on the Internet advances
or changes? Might it hinder the development of technology?
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