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17.26 Copyright—Affirmative Defense—Service Provider of Network Communications Services Defined (17 U.S.C. § 512(i), (k))

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This chapter is being reviewed in light of comments solicited by the Committee from the public. 

17.26 COPYRIGHT—AFFIRMATIVE DEFENSE— SERVICE PROVIDER OF NETWORK COMMUNICATIONS SERVICES DEFINED (17 U.S.C. § 512(i), (k)) 

The defendant qualifies as a service provider of network communication services if the defendant: 

1. engaged in transmitting, routing, or providing connections for online communication, between points specified by a user, of material of the user’s choosing, without modification to the content of the material; 

2. adopted, reasonably implemented, and informed users of a policy to terminate users who are repeat copyright infringers; and

3. accommodated and did not interfere with standard technical measures used to identify or protect copyrighted works. 

Comment 

Service providers of network communication services are defendants "who act only as ‘conduits’ for the transmission of information," and do not "select which users will communicate with each other" or perform nonconduit functions. Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1041 (9th Cir.2013). This limitation applies whether the nonconduit functions are "automatic or humanly controlled." Id. at 1042.