functions for purposes of applying this section. Whether a service provider qualifies for the
limitation on liability in any one of those subsections shall be based solely on the criteria in that
subsection, and shall not affect a determination of whether that service provider qualifies for the
limitations on liability under any other such subsection.”^2262
(1) Safe Harbors – Definition of a “Service Provider”The four safe harbors are described below and are applicable to a “Service Provider.”
Under Section 512(k), for purposes of the first safe harbor, a “Service Provider” is defined as “an
entity offering the transmission, routing or providing of connections for digital online
communications, between or among points specified by a user, of material of the user’s
choosing, without modification to the content of the material as sent or received.” For purposes
of the other three safe harbors, a “Service Provider” is defined more broadly to be “a provider of
online services or network access, or the operator of facilities therefor.” The latter definition
would seem to cover a broad array of OSPs, BBS operators, system operators, search engines,
portals, and the like. It is also probably broad enough to cover the owners and operators of
corporate intranets, university networks and interactive websites.^2263
In Marvel Enterprises, Inc. v. NCSoft Corp.,^2264 the court dismissed the plaintiffs’ claim
in their complaint for declaratory judgment that the defendants did not qualify as a “service
provider” under the DMCA safe harbors and thus would not be protected from liability
thereunder. The court noted the rule that a plaintiff may not seek declaratory relief as an advance
ruling on a potential affirmative defense. From their allegations, it was clear that the plaintiffs
were seeking a determination of the defendants’ ability to use the DMCA as a defense. Because
the issues on which the plaintiffs sought declaratory judgment related only to the defendants’
liability for the remainder of the plaintiffs’ claims, the declaratory judgment would not
independently resolve the controversy between the parties, but rather would merely determine a
collateral legal issue governing certain aspects of the dispute. The court concluded that the
plaintiffs were therefore inappropriately seeking an advance ruling on a potential affirmative
defense.^2265
(i) Acting as a Mere Conduit for Infringing Information- Section 512(a)
The first safe harbor is essentially a codification of the Netcom case and a rejection of the
Frena case, at least to the extent that the Frena case suggested that passive, automatic acts
(^2262) 17 U.S.C. § 512(n).
(^2263) Ian C. Ballon & Keith M. Kupferschmid, “Third Party Liability under the Digital Millennium Copyright Act:
New Liability Limitations and More Litigations for ISPs,” Cyberspace Lawyer, Oct. 1998, at 3, 4. The
legislative history states that the definition “includes universities and schools to the extent they perform the
functions identified in” the definition. H.R. Rep. No. 105-551 Part 2, at 64 (1998).
(^2264) 2005 U.S. Dist. LEXIS 8448 (C.D. Cal. Mar. 9, 2005).
(^2265) Id. at *18-19.