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Thursday, March 24, 2011

ISP liability

In tort law secondary liability, (sometimes called indirect infringement), generally arises when a party contributes to, facilitates, induces, or is otherwise responsible for the infringing acts of a primary infringer.  Common types are vicarious liability such as for an agent (e.g. an employer is liable for an employee) contributory liability, where you have assisted the infringer and inducement, where you have provided a means or incentive (e.g. a P2P file sharing system aimed at enabling people to copy music illegally).

As a general rule an internet service provider is liable as a primary infringer or a joint tortfeasor if he makes infringing copies (e.g. copies of a customer’s files stored on the ISP’s servers). This primary liability for storing pirated copyright files has led to exceptions, such as under the US DMCA where the ISP’s liability as a primary infringer is restricted to enable ISPs to operate more effectively.

ISPs may still be liable for secondary infringement provided there is a degree of ISP knowledge and involvement in the specific infringing activity. In general this is taken to mean knowledge, so that when an ISP is notified of the presence of the infringing object he has knowledge of the infringement on his system so becomes liable unless he takes steps to prevent it. Many ISPs operate notice takedown systems  as a result.

Some of the news IP Komodo found in China on ISP liability developments is here

In Indonesia there are no specific ISP provisions in the Copyright law, Trademark law or the Information and Electronic Transaction Law. But types of secondary liability exist in the Criminal Code. Article 55 and 56 of the Criminal Code mention participation in punishable acts. The law provides that anybody who with others deliberately provides an opportunity, means or information for the commission of a crime may also liable for the act itself.

Civil Law provides higher degrees of liability. The law does not differentiate secondary liability. An ISP's act in contributing to infringement will be considered as the “unlawful act” as well. The Article 1365 of Civil Code provides that  “Every illegitimate act, which causes damage to third parties obliges the party at fault to pay for the damage caused." Furthermore, based on Article 1366 of Civil Code, ISPs be liable for illegalities caused by his omission to act and by his imprudence. Article 1367 states that a party can be also liable not only for its own conduct but also for damage caused by the acts of the persons under his responsibility or caused by matters which are under his supervision. However, liability may cease if the party can prove that they have taken necessary steps to prevent it and the current act could not be prevented by them.

Indonesia may not have clear cut ISP liability rules such as those developing in China, but provisions exist to argue, as was done in the US prior to the DMCA that liability will fall on ISPS who do not after notice take down IP infringements in their systems.

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