Infringement or impingement? Carving out a First Amendment defense for sysops held strictly liable for their subscribers' copyright infringements

Online Service Providers perform a valuable social service by supplying ordinary citizens with forums for speech, but they also supply forums in which it is particularly easy to commit copyright infringement. Under current law, online service providers may be held strictly liable for their subscribers' copyright infringements, even when they have no knowledge of those infringements. It is difficult and costly for most service providers to screen their systems for copyright infringement, so most do not. Many are not even aware that they are potentially liable for their users' messages.; A survey of bulletin board service providers supports the thesis that the imposition of strict liability on service providers is likely to lead them to engage in censorship of subscriber messages that are difficult to authenticate, or worse, to discontinue their services entirely. Both consequences are likely to interfere with the First Amendment rights of their subscribers. This study explores four potential First Amendment defenses that service providers might be able to use to defend themselves against strict liability for their subscribers' infringements--the actual knowledge defense, the good faith defense, the freedom of association defense and the overbreadth defense. Traditionally, courts have been reluctant to accept First Amendment defenses to charges of copyright infringement. They have relied instead upon the doctrine of fair use or the idea/expression dichotomy to avoid conflicts between the First Amendment and Copyright Act. But, the application of strict liability to online service providers presents new challenges to the constitutional rights of online users that neither fair use nor the idea/expression dichotomy can resolve.; Although the rights of copyright owners should be protected in the online environment, holding online service providers strictly liable for the infringements of their subscribers is neither economically or socially efficient. Technological alternatives are available to copyright owners who wish to protect their copyrighted works online that are potentially more effective than strict liability and less likely to impinge on users' First Amendment rights.