The Relationship Between the ISP Safe Harbors and the Ordinary Rules of Copyright Liability

I think that there is a general understanding abroad in the land about the relationship between the ordinary principles of liability for copyright infringement and the limits on liability for online service providers (OSPs) in sections 512(c) and 512(d). The basic view is that these sections depart from the traditional copyright regime by protecting OSPs from claims of direct copyright infringement, but basically follow the traditional copyright regime and allow secondary liability claims against an OSP for infringements committed by users of the OSP‘s services. In this view, section 512 is most notable for changing the rules governing liability for direct infringement of copyright. A direct infringer is a party that itself uses a copyrighted work in one of the ways that the Copyright Act reserves exclusively to the copyright owner—reproduction, adaptation, distribution, public performance or public display. Under the expansive statutory readings that many courts have given to the scope of online conduct that comes within the copyright owner‘s exclusive rights, many of an OSP‘s activities might lead to liability for direct infringement. But section 512 provides that, if the OSP meets certain conditions, it will not be liable as a direct infringer for certain types of activities. Thus, section 512 is seen as shielding OSPs from otherwise potentially successful claims of direct infringement. At the same time, this view sees section 512 as preserving copyright owners‘ secondary liability claims against OSPs. Secondary liability claims are premised not on a defendant‘s own unauthorized use of a copyrighted work in violation of the owner‘s exclusive rights. Instead, secondary liability claims target a defendant