Is Coffee Shop an ISP for Purposes of DMCA?

Dear Rich: A friend of mine runs a coffee shop and just received a DMCA notice — apparently someone in his shop has been bit-torrenting a TV show. Does my friend have any liability? Can he be considered an ISP? What should he do next?  A DMCA takedown notice is sent because a copyright owner believes someone has posted an infringement and they want it removed without the hassle of filing an infringement lawsuit. For example, the Dear Rich Staff periodically finds infringing copies of its eBooks posted at websites or blogs. Instead of writing to the individual user, we send a DMCA notice to the company that owns the blogging service or the web provider that hosts the site (the Internet Service Provider or ISP). The ISP (assuming they're not in Rumania, China, or some other country where the locals don't fear U.S. copyright lawyers) typically removes whatever is complained about -- for example, an infringing picture at a blog, an infringing movie at YouTube, etc. By promptly removing the material, the ISP is given a "safe harbor" meaning that the ISP can't be sued for infringement. The ISP then may write to the individual user who maintains the blog, website, or YouTube account and inform them about the Notice to explain why the music, movie or eBook is now missing. The individual user then has the right to file a counter-notice. (We explain the procedural aspects here.)
What's an ISP? We believe that if the copyright owner sent the notice to your friend's coffee shop, then your friend's coffee shop is beng considered as an ISP. An Internet Service Provider (ISP) also sometimes referred to as an Online Service Provider (OSP) is any business that provides access to the Internet. That includes big access providers like AOL, Yahoo! and Google, or it can refer to companies that provide website hosting, commercial wi-fi services, or file-transferring (FTP) services.
What's confusing about your friend's notice ... A DMCA takedown notice is intended to direct the recipient to take something down from the Internet (or disable access). This is obviously something within the ISP's control. We're not clear how that would work in the case of a wifi coffee shop. If there are standalone computers at the coffee house, perhaps the notice is requesting deletion of bit-torrent files -- for example, if the in-shop computers are serving as bit-torrent clients. But if the customers bring their own computers to the coffee shop, we're not sure what can be "taken down."  More information is needed. (BTW, if this answer seems disjointed, it's because we stopped mid-answer to make ourselves a cup of coffee. We've fallen pretty hard for the Blue Bottle party line and we can't seem to free ourselves).

Photo Credits: Can You Remove Them?

no shoes, no shirt;
no fair use defense

Dear Rich: Please discuss Murphy v. Millennium Radio Group, a recent case that deals with nudity, defamation and copyright law. Okay, here goes: A photographer's copyrighted picture of two nude radio "shock jocks" was published in the New Jersey Monthly. The radio station that employed the men scanned and posted the photo online (after removing the photo credit that ran alongside the photo -- known in the trade as a "gutter credit"). The station then encouraged listeners to download the photo, modify it and resubmit the photos to the station for posting. When the photographer's lawyer complained to the station, the jocks did what is expected from men who pose nude to promote radio shows -- they insulted the photographer, advised others not to do business with him, and made crude comments about his sexuality. The photographer sued for defamation, copyright infringement, and for violation of the Digital Millennium Copyright Act (DMCA). The district court ruled in a summary judgment against the photographer on all counts.
The Court of Appeals Decision. On appeal, the Third Circuit reversed. More discovery was needed to decide the defamation claims (the tapes of the show had been destroyed). The Third Circuit also blew off any fair use defense. Posting the original photo and encouraging listener modifications was a purely commercial use and carried no additional transformative message. For those keeping score, all four fair use factors weighed against the station.
Removal of the credit. The most interesting claim was the argument that the DMCA prohibited the removal of copyright management information (CMI), which includes digital identifying information such as the name of the author. The Third Circuit ruled that the "gutter credit" qualified as CMI and cutting it off the photo violated the DMCA.
Takeaway Dept. In this case, someone physically cut off the photo credit, scanned the photo and posted the digital result, something not many people anticipated would trigger a DMCA claim. Does this mean that you must always include a photo credit when you reproduce a photo? Not necessarily; it just means you cannot remove an existing credit. This issue may become more confusing if the credit is not adjacent on the printed page, perhaps something that other cases will decide. For now, gutter credits qualify as CMI, at least in the Third Circuit.

Facebook Group Copied My Photograph

Dear Rich: I recently uploaded a picture I designed for a Facebook group. Someone has taken this picture and used it in another group but slightly modified it. Would this be copyright infringement? Probably. Assuming your photo qualifies for copyright protection (most do) and assuming the copy doesn't qualify as a fair use (most don't), then the unauthorized taking of your photo is an infringement. What do you want to do about it? If you want it taken down,  a simple solution would be to use Facebook's DMCA Notice policy. Fill out this online form and unless the other party objects to the notice, the photo will be removed and that will be that. If the other Facebook group disagrees with you and files a counter notice, then the photo will stay up unless you file a copyright lawsuit. That's expensive, time-consuming and probably a financial loss for you, even if you win, (unless you can prove that you suffered serious financial damages). If you don't want to be confrontational, you can always try writing to the other Facebook group, explain that you have a copyright in the photo and ask them to remove the photo voluntarily.