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.”
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” 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.". Section 512(k)(1)(B)'s definition has been interpreted broadly.
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:
- Application service provider
- Internet service provider
- Network service provider
- Online service provider
- VoIP service provider
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||”|
A service provider is "a provider of telecommunications services or a provider of information services."
- 17 U.S.C. §512(k)(1)(A).
- Id. §512(k)(1)(B).
- 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'").
- H.R. Conf. Rep. No. 105-551, pt. 2 at 64.
- Convention on Cybercrime, Art. 1(c).
- 47 C.F.R. §51.5.