Californian ISPs find that harbours aren’t too safe after all

When one thinks about ISP liability, the focus is usually on copyright law and the extent of safe harbours provided under the relevant copyright regime, but the US$32 million damages verdict in the Louis Vuitton v Akanoc case shows that, at least in the United States, trade mark law is becoming increasingly important as well. 

Although the jury in the Louis Vuitton case found the defendants liable for contributory copyright infringement because it repeatedly ignored takedown notices sent by the plaintiff (presumably losing its ability to rely on the DMCA safe harbour provisions as a result), the jury’s verdict of $900,000 for contributory copyright infringement pales into insignificance compared to the $31 million it awarded to the plaintiff for contributory trade mark infringement.  

In regard to contributory trade mark infringement, US courts had previously held that ISPs do not have a responsibility to “monitor the internet” when they are merely involved in translating domain names into IP addresses (see Lockheed Martin Corp v Network Solutions, Inc.). However, the judge in this case found that ISPs could be found liable depending on how much control they have over the “means of infringement” (see for example, this commentary on the court’s order in relation to defendant’s motion to dismiss).  Here , the defendant hosted the websites on its own servers, provided routing services and had the ability to remove infringing websites. This level of involvement and extent of control over the “means of infringement”  led to a finding that it had a duty to take down web sites once it had knowledge of infringement. 

This case represents an interesting development in the United States and it remains to be seen whether adventurous pleaders in other jurisdictions may be inclined to follow suit.

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