Controlling technology: Internet service providers and copyright liability

The development of computer networks such as the Internet has significantly reduced the distinction between one-way and two-way networks. One-way content distribution and two-way conversation--which can include discussion and fair use of copyrighted works--now occur over the same network. The application of copyright law to computer networks may seriously affect those networks' ability to handle both types of communication.; The theoretical and practical application of copyright liability is based on the assumption of a one-way flow of messages from the author to the public. Copyright's reliance on a one-way flow of fixed works promotes the development of one-way communication systems to distribute copyrighted content. The convergence of content distribution networks with communication networks designed for two-way conversation creates a fundamental difficulty for copyright. While copyright can be applied to computer networks such as the Internet, the question remains whether the Internet can continue to function as both a one-way distribution network for mass media content and as a two-way communication network for conversations when traditional concepts of liability are imposed.; Internet service providers (ISPs) should be shielded from liability for three reasons. First, as two-way network providers, ISPs facilitate the private and the public use of copyrighted works. Second, because they do not benefit directly from the infringement, ISPs have little incentive to take risks and will therefore restrict speech to avoid liability. Third, their role as a two-way network is more important than their role as copyright intermediaries, and must be protected.; The appropriate copyright liability standard for ISPs is one which forces copyright owners to utilize the courts, which are in a position to protect the First Amendment interests of ISPs and users. A contributory infringement standard where actual knowledge is based on a court judgment against the direct infringer is the most appropriate standard for protecting First Amendment values and ensuring the continued vitality of the Internet as a medium that fosters dialogue as well as distribution.