Digital Law Online: Mere Conduits

Subsection (a), the “mere conduit” provision, covers copies that must necessarily be made during digital communications, and covers only intermediate carriers of the communications, not the originators or recipients of the communications. They must not select, alter, or save the material in the communications. They are simply serving as conduits for carrying the communications of others. Congress provided a restricted definition for mere conduit service providers:

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. {FN97: 17 U.S.C. §512(k)(1)(A)}

In contrast, service providers for all the other safe harbor provisions include not only the mere conduit service providers, but also providers of “of online services or network access, or the operator of facilities therefore.” {FN98: 17 U.S.C. §512(k)(1)(B)}

As the Senate Judiciary Committee explained, this safe harbor

applies to service providers transmitting, routing, or providing connections for material, and some forms of intermediate and transient storage of material in the course of performing these functions. For example, in the course of moving packets of information across digital online networks, many intermediate and transient copies of the information may be made in routers and servers along the way. Such copies are created as an automatic consequence of the transmission process. In this context, “intermediate and transient” refers to such a copy made and/or stored in the course of a transmission, not a copy made or stored at the points where the transmission is initiated or received. {FN99: Sen. Rep. No. 105-190 at 41}

This safe harbor applies when a service provider is “transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections” and when five specific requirements that describe the nature of a mere conduit are met. These requirements make it clear that the service provider is simply carrying material for another and is not exercising any control over the material other than trying to get it to its final destination.

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content. {FN100: 17 U.S.C. §512(a)}

The Senate Judiciary Committee elaborated on these provisions:

The Committee intends the term “selection of the material” in subsection (a)(2) to reflect an editorial function of determining what material to send, or the specific sources of material to place online (e.g., a radio station), rather than “an automatic technical process” of responding to a command or request, such as one from a user, an Internet location tool, or another network. The term “automatic response to the request of another” is intended to encompass a service provider’s actions in responding to requests by a user or other networks, such as requests to forward e-mail traffic or to route messages to a mailing list agent (such as a Listserv) or other discussion group. The Committee intends subsection (a)(4) to cover copies made of material while it is en route to its destination, such as copies made on a router or mail server, storage of a web page in the course of transmission to a specific user, store and forward functions, and other transient copies that occur en route. The term “ordinarily accessible” is intended to encompass stored material that is routinely accessible to third parties. For example, the fact that an illegal intruder might be able to obtain access to the material would not make it ordinarily accessible to third parties. Neither, for example, would occasional access in the course of maintenance by service provider personnel, nor access by law enforcement officials pursuant to subpoena make the material “ordinarily accessible.” However, the term does not include copies made by a service provider for the purpose of making the material available to other users. Such copying is addressed in subsection (b). {FN101: Sen. Rep. No. 105-190 at 42}

Unlike the other safe harbors, this subsection contains no provision for giving notice to the communications provider that leads to the removal of allegedly-infringing material, recognizing the requirement of the safe harbor that any copies not be available “for a longer period than is reasonably necessary for the transmission, routing, or provision of connections.”

In addition, any injunction directed at a “mere conduit” service provider is limited by subsection (j) to one or both of the following forms:

(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is using the provider’s service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. {FN102: 17 U.S.C. §512(j)(1)(B)}

Again, this represents Congress’s understanding that the infringing material passing along the conduit remains only for a limited time and is not generally accessible by others, so the only reasonable relief is the blocking of future transmissions by the actual infringer.

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