Actual versus legal control: Reading vicarious liability for copyright infringement into the Digital Millennium Copyright Act of 1998

Title II of the Digital Millennium Copyright Act of 1998 purports to limit the liability of Internet service providers that have been found vicariousl y liable for copyright infringement. However, by basing this limitation on the absence of the "benefit" and "control" elements of the common law test for vicarious liability, the plain language of Title II, codified at 17 U.S .C. 512, appears to preclude statutory protection once a court has found a service provider vicariously liable. This Comment argues that courts must r ead a narrow definition of "actual" control into 17 U.S.C. 512(c)(1)(B) in order to preserve the liability limitations of Title II, to avoid structura l conflict, and to fulfill legislative intent. This Comment locates actual control in a line of district court cases from the Second Circuit that have been eclipsed by the Ninth Circuit's embrace of "legal" control. This Comm ent concludes that an actual-control standard best preserves incentives to monitor for infringement.