Do the Section 512 Safe Harbor provisions apply to the distribution of circumvention tools such as serial numbers or to methods for disabling copyright management systems?
Section 512 creates a safe harbor from claims of “copyright infringement” for service providers who meet the statutorily-defined criteria. “Copyright infringement” is defined by Section 501 of the Copyright Act as any violation of the exclusive rights granted in sections 106 through 121 of the Act. Copyright infringement thus does not include violations of the DMCA’s Anticircumvention provisions, which are found in Section 1201 et seq. While they are unlikely to be deemed direct infringers, distributors of serial numbers may face either vicarious or contributory liability for copyright infringement. Vicarious liability requires that the distributor have the right and ability to control the infringer’s behavior and direct financial gain by the distributor. In circumstances of serial numbers posted on free message boards of Usenet groups, the distributor likely lacks both control and financial benefit. Contributory liability requires that the distributor possess knowledge of infringing c
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