The Best Available Technology Standard

Article Source: Columbia Law Review, Vol. 111, p. 1194, 2011
Publication Date:
Time to Read: 2 minute read
Written By:

 Lital Helman

Lital Helman



Article proposes using the best available technology standard to determine liability of webhosts in copyright cases.


Policy Relevance:

Policy makers should institute the best available technology standard in regard to screening copyrighted material on webhosting platforms. This new standard would increase innovation in automatic filtering, limit litigation, and give webhosting companies incentives for policing their own content.


Key Takeaways:
  • Webhosts are companies that provide a platform upon which individuals and organizations can build websites and create access to those sites by the broader Internet community. A continuing issue faced by webhosting companies is copyright liability for infringing material placed on their servers by users.
  • Individual copyright holders have a right to protect pictures, videos, and other material from unlicensed use. However, stopping every potential poster on the Internet from using such material is extremely difficult, and many copyright holders have instead attempted to sue webhosting companies for allowing users to post infringing material to the Internet via their services.
  • In 1998, Congress enacted digital copyright reform which included a new test for determining copyright liability for web hosting companies. Congress created a two-pronged approach (notice and takedown), which requires copyright holders to notify webhosts of infringing content and for the hosts to then expeditiously remove the offending content.
  • This current system of copyright protection on the Internet has several inherent flaws.
    • First, there is no incentive for webhosts to actively participate in copyright enforcement because they are immune to liability until notified of infringing content.
    • Secondly, there is currently legal uncertainty as to whether the notice and takedown test protects webhosts against indirect liability for copyright infringement.
    • Finally, there is concern that placing the duty of enforcement in the hands of copyright owners may unnecessarily curtail speech and progress on the Internet.
  • A better standard for determining webhost liability would be to institute the best available technology standard in regard to screening and filtering technology. This standard would require webhosting companies to employ the latest technology available for automatically screening their content and removing potentially infringing material; companies who used such technology would be immune from copyright infringement lawsuits.
  • Use of the best available technology standard would give webhosts the legal certainty about what steps they need to take in order to avoid liability, while at the same time improving the efficiency and fairness of copyright enforcement. Furthermore, this standard would reduce litigation against webhosts and spur innovation into better screening and filtering technologies.



Gideon Parchomovsky

About Gideon Parchomovsky

Gideon Parchomovsky specializes in intellectual property, property law, and cyber law. Parchomovsky has already made significant contributions to the field through his wide-ranging scholarship, having written numerous articles for major law reviews on property and liability rules, insider trading, trademarks, domain names, and patents. Most recently, he has been advocating the need for a comprehensive property theory and the need to introduce a value-oriented theory. Parchomovsky has received the A. Leo Levin Award presented to the best teacher of a first-year course.

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