One potential roadblock for the RIAA's latest lawsuit may come courtesy of the Digital Millennium Copyright Act. The DMCA's Safe Harbor provision provides protection for ISPs from copyright infringement lawsuits as long as they take down offending material once they are served with a notice of infringement. The biggest question in the trial is whether Usenet.com qualifies for Safe Harbor protection under the DMCA. "Whether the Safe Harbor applies is the central legal question that is going to be raised," EFF senior staff attorney Fred von Lohmann told Ars.
There's some precedent for newsgroup providers finding shelter in the DMCA's Safe Harbor. In 2000, author Harlan Ellison filed a lawsuit against Stephen Robertson, who allegedly posted a number of Ellison's works to alt.binaries.e-book. One of the codefendants was AOL, which provides Usenet access to its subscribers. AOL argued that it was not liable for infringement due to the Safe Harbor provision, and the Ninth Circuit Court of Appeals agreed. One of the factors in the decision, however, was AOL's 14-day retention policy, which the court deemed was sufficient to qualify for the DMCA's "transitory communications" Safe Harbor protection. AOL later lost that protection, however, when it was discovered that the ISP went months without checking the infringement notification inbox.
Usenet.com does have a designated agent for copyright infringement claims, as is required under the DMCA, and its retention policy may not even come into play, according to von Lohmann. If Usenet.com can show that it complies with the DMCA by removing access to infringing content and by suspending the accounts of repeat offenders, it may be enough to provide it with protection under the hosting and linking provisions of the DMCA.
An RIAA spokesperson tells Ars that the group has issued "many" takedown notices to Usenet.com, but von Lohmann tells Ars that the volume of takedown notices isn't what counts. "The DMCA's Safe Harbor makes it very clear," von Lohmann said. "The number of notices doesn't matter as long as you take the infringing content down."
The RIAA may ultimately target other Usenet access providers, and, if successful, may make it more difficult for users to access newsgroups. But the venerable network has been around since 1980, and its decentralized nature is sure to make any attempt to stamp out copyright infringement there a futile undertaking.
