Definitions[edit | edit source]

DMCA[edit | edit source]

Under the Digital Millennium Copyright Act ("DMCA"), to qualify for immunity under the safe harbor provisions, a party must first meet the statutory definition of a service provider. The DMCA provides two distinct definitions, one applicable to the first safe harbor and the second applicable to all of the other safe harbors.

Under 17 U.S.C. §512(a), the transitory communications provision, “service provider” is narrowly 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.”[1]

The remaining three subsections utilize a broader definition of “service provider,” applicable to “a provider of online services or network access, or the operator of facilities therefor”[2] and includes entities "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."[3]. Section 512(k)(1)(B)'s definition has been interpreted broadly.[4]

For example, this definition encompasses providers offering “Internet access, e-mail, chat room and web page hosting services."[5]

General[edit | edit source]

A service provider may provide an access gateway to the Internet, security services, storage or processing services, or access to information (for example, Internet addresses or news) and applications (for example, search engines). Individual companies may provide a unique mixture of access, information, and services (for example, social networks).

There are many situations in which an entity will be referred to as a service provider, including:

Personal information[edit | edit source]

A service provider is

{{Quote|a person that processes personal information on behalf of a business and which receives from or on behalf of the business a consumer's personal information for a business purpose pursuant to a written contract, provided that the contract prohibits the person from:

(A) selling or sharing the personal information;

(B) retaining, using, or disclosing the personal information for any purpose other than for the business purposes specified In the contract for the business, including retaining, using, or disclosing the personal information for a commercial purpose other than the business purposes specified in the contract with the business, or as otherwise permitted by this title;

(C) retaining, using, or disclosing the information outside of the direct business relationship between the service provider and the business; and

(D) combining the personal information which the service provider receives from or on behalf of the business, with personal information which it receives from or on behalf of another person or persons, or collects from its own interaction with the consumer, provided that the service provider may combine personal information to perform any business purpose as defined In regulations adopted pursuant to paragraph (10) of subdivision (a) of Section 1798.185, except as provided for in paragraph (6) of subdivision (e) of this Section and in regulations adopted by the California Privacy Protection Agency. The contract may, subject to agreement with the service provider, permit the business to monitor the service provider's compliance with the contract through measures including, but not limited to, ongoing manual reviews and automated scans, and regular assessments, audits, or other technical and operational testing at least once every twelve (12) months.

(2) If a service provider engages any other person to assist it in processing personal information for a business purpose on behalf of the business, or if any other person engaged by the service provider engages another person to assist in processing personal information for such business purpose, it shall notify the business of such engagement, and the engagement shall be pursuant to a written contract binding the other person to observe all the requirements set forth In paragraph (1).


Telecommunications law[edit | edit source]

A service provider is

[a]ny public or private entity that provides to users of its service the ability to communicate by means of a computer system, and

any other entity that processes or stores computer data on behalf of such communication service or users of such service.[6]

A service provider is "a provider of telecommunications services or a provider of information services."[7]

References[edit | edit source]

  1. 17 U.S.C. §512(k)(1)(A).
  2. Id. §512(k)(1)(B).
  3. Id.
  4. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 623 (4th Cir. 2001) (full-text); Hendrickson v. eBay, Inc., 165 F.Supp.2d 1082, 1087 (C.D. Cal 2001) (full-text) ("eBay clearly meets the DMCA's broad definition of online 'service provider'").
  5. H.R. Conf. Rep. No. 105-551, pt. 2 at 64.
  6. Convention on Cybercrime, Art. 1(c).
  7. 47 C.F.R. §51.5.
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