Liability of Service Providers

You can argue the vicarious infringement liability of a web service provider either way and the weight of American authority is tilting towards making the web service provider liable for vicarious copyright infringement because of the argument that the web service provider has control over the data transmission and can stop the infringement before the act is completed and because the web service provider receives a subscription fee for the transmission, then it is profiting from the direct copyright infringement of another.

In Shapiro v Green, the US court held that "If someone has the "right and ability" to supervise the infringing action of another, and that right and ability "coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials -- even in the absence of actual knowledge" that the infringement is taking place -- the "supervisor" may be held vicariously liable for the infringement." What is vicarious copyright infringement and how is it different from contributory copyright infringement? Gershwin v Columbia Artist Management defines "Contributory infringement" as that which may be found when "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." whereas in vicarious infringement, the vicarious infringer is in a position to stop the infringement from taking place because of a direct control over the direct infringer or infringement (See: Hollar, Lee < http://digital-law-online.info/lpdi1.0/treatise14.html>)

Our eCommerce law on the matter provides for the limited liability of the web service provider in terms of copyright infringement in Section 30 of the Act, that such service provider will not be held civilly or criminally liable for as long as his participation is that as defined in Section 5 of the Act which provides that such web service provider must not alter any of the electronic data message of electronic document being transmitted. Taking into account that almost all household now have internet access, I don’t think that currently web service providers have direct control over the transmission and could possibly stop an infringement, even the identification of a transmission as one that is infringing upon another’s copyright is highly improbable due to the amount of data transmission today. So I think that in our jurisdiction and presently, web service providers cannot be held to be vicariously or even contributory infringing copyrighted works because of the express limitation of liability in our e-commerce law and because of the huge amount of data transmissions being transmitted by the second.