Williams to be a draw.^2257 Citing the Ellison case, the court held “that if the presence of
infringing material on Scribd’s website compels more people to visit the website than otherwise
would, thereby making it more attractive to advertisers, Scribd can be said to benefit from the
infringement.”^2258 The court found that the plaintiff had alleged that the misuse of his
copyrighted works attracted more users to Scribd’s web site, and that was adequate at the
pleading stage – although the court noted that during discovery, Scribd might be able to show
that it didn’t in fact generate ad revenues directly or even tangentially from the works of the
plaintiff that were uploaded to its site.^2259
- Limitations of Liability of Online Service Providers in the DMCA
From late 1995 through May 1996, OSPs, telecommunications carriers and other
distributors of online information, content providers and software companies negotiated
intensively to reach a consensus on proposed legislation that would provide various statutory
safe harbors with respect to the liability of online providers. The parties were unable to reach
agreement for legislation in the 103rd Congress. The debate among the various industry
segments was ignited again in connection with the WIPO copyright treaties in Geneva in
December of 1996.
(a) History of the Various Legislative EffortsA number of bills were then introduced in Congress that would limit the liability of
OSPs. The first to be introduced was by Rep. Coble on July 17, 1997 (H.R. 2180). This bill
would have exempted OSPs from direct or vicarious copyright liability solely based on the
transmission or providing of access to online material, and eliminate any damage remedy for
contributory liability, limiting plaintiffs to injunctive relief. The criteria for exemption were that
the OSP: (a) not initially place the material online; (b) not generate, select, or alter the content of
the material; (c) not determine the recipients of the material; (d) not receive a financial benefit
directly attributable to a particular act of infringement; (e) not sponsor, endorse, or advertise the
material; and (f) either not know or be aware by notice or other information indicating that the
material is infringing, or be prohibited by law from accessing the material.
The second bill to be introduced was S. 1146, which, in addition to the WIPO treaty
implementation provisions discussed above, also contained provisions limiting liability of OSPs.
S. 1146 adopted a different approach to OSP liability than H.R. 2180. It contained three major
provisions. First, it provided blanket exemptions from direct, vicarious or contributory liability
for OSPs based on the mere provision of defined electronic communications network services or
facilities, or on the transmission of private electronic communications, including voice
messaging or electronic mail services or real-time communication formats, including chat rooms,
streamed data, or other virtually simultaneous transmissions. Second, it provided exemptions
from direct, vicarious or contributory liability for the provision of the following information
(^2257) Id. at 23-24.
(^2258) Id. at 24.
(^2259) Id. at *24-25.