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According to DMCA, to avoid liability the ISP must not financially benefited from the infringement. But ISP is always making money in one or many ways from infringement (ads display, subscription, marketing, publicity, traffic) Especially when the infringed content is popular, the revenue must be there more than usual.

so how can ISP ever be innocent?

Addition from comments:

I think the key for this is DMCA does not specify indirect or direct benefit of ISP. So lawyers can always say that ISP gained "a benefit". Also most of shady file hosting sites their main purpose is obviously make money from illegal content in a short time until reported. When someone upload a popular illegal content on youtube, gets 1 million view in a day then deleted by google. Google already made big ads revenue, which is the main business model of the website. That is completely a direct benefit out of it. With full purpose and intention of Google.

  • ISPs don't display ads, and traffic costs them money. Your ISP prefers if you don't download anything, legal or not. – gnasher729 Feb 2 at 0:28
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    ISP in DMCA refer to any internet middle man, not just cable company. So it includes google, youtube, dropbox, amazon etc all of them. – Sabotender Feb 2 at 1:11
  • In that case you are using the wrong word. ISP = Internet Service Provider. Using the wrong words, you will get wrong answers. – gnasher729 Feb 2 at 15:24
  • No that is not the case. I used right words, your comment is not right. youtube provides an internet service. from copyright.gov "certain kinds of service providers—for example, those that allow users to post or store material on their systems, and search engines, directories, and other information location tools" – Sabotender Feb 2 at 21:50
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The normal scenario is that a user illegally downloads a movie. The IP owner identifies that someone illegally downloaded a movie from some IP address assigned to the ISP. They send a notice to the ISP, the ISP sends it on to the person the IP address was assigned to. The ISP doesn't benefit directly from the infringement.

The other scenario is that the ISP gives storage space to users. A user stores an illegal copy of a movie and shares it. The IP owner finds out people are downloading from this IP address, sends a notice to the ISP and the ISP forwards the notice to the user and may delete the infringing content. Again, the ISP doesn't benefit directly from the infringement.

Now, if the ISP advertises itself as a place to download movies or becomes aware that infringing content is located on their servers and does nothing, then yes, they become eligible for liability. (Of course, since the DMCA is a US law, they have to be also in the US or a nation willing to help the US enforce the DMCA)

  • I think the key for this is DMCA does not specify indirect or direct benefit of ISP. So lawyers can always say that ISP gained "a benefit". Also most of shady file hosting sites their main purpose is obviously make money from illegal content in a short time until reported. When someone upload a popular illegal content on youtube, gets 1 million view in a day then deleted by google. Google already made big ads revenue, which is the main business model of the website. That is completely a direct benefit out of it. With full purpose and intention of Google. – Sabotender Feb 2 at 1:10
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    @Sabotender The broad reading of the DMCA that you are suggesting is not how the law has been interpreted. Typically, if a site follows the DMCA takedown procedure for user provided content they have been found to be immune from liability in case after case. There are regular reports on the outcomes of these cases, for example, at blog.ericgoldman.org Under the DMCA, as it's been interpreted, there needs to be financial benefit to the host from the copyrighted work beyond the fee charged for hosting the content and ad $$ (e.g. if there's a royalty based on the customer's profits). – ohwilleke Feb 2 at 1:31
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    @Sabotender "Google already made big ads revenue, which is the main business model of the website. That is completely a direct benefit out of it. With full purpose and intention of Google." The DMCA is basically a legislative compromise between copyright owners and ISPs that accepts that this can happen and provide a profit for ISPs as a price that has to be paid for having a workable real time copyright law enforcement mechanism, instead of having to wait many days for court hearings. The ability of ISPs to make a profit briefly on this was an understood and accepted part of the deal. – ohwilleke Feb 2 at 1:36
  • could you post direct link to the exact wording in law or previous supreme court ruling which interpreted that advertising revenue is allowed legally? That would be a good answer to post for this question, until new supreme court case arise in the future. – Sabotender Feb 2 at 21:57

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