Common carrier law establishes, among other things, that the carrier is not liable for the contents of the goods carried. Common carriers have historically come in many flavors: roadhouses (hotels), trucks, trains, telegraph networks, postal services, and telephone networks. These common carriers had a special relationship to the public. They served the public without discrimination - the public was clearly defined as a third party - a carrier would not generally be liable for that third party. Postal services are not liable for the contents of the letters carried. Telephone services are not liable for the communications transmitted. Trains would not be liable if the passenger transported happened to be the notorious Red Baron.

In recent history, common carrier law has had a focus on communications networks. Communications common carriers (aka telephone networks or historically Ma Bell) are regulated under the Communications Act of 1934. [Title 47 United States Code] In the communications context, Internet networks are not common carriers and are therefore not regulate by the FCC. This created a tension. Internet networks looked, tasted, and smelled like classic common carriers, transporting goods without ownership of or responsibility for the goods transported. But Internet networks did not wish to be considered common carriers in the communications context. This has led to a schizophrenic legal approach that has addressed the liability of networks on a case by case basis, avoiding any classification of common carriage. Congress has consistently concluded that Internet networks should not be liable for the third party content that they carry. The Communications Decency Act created a defense to liability for third party content in the context of liable and defamation. Legislative proposals with regard to Internet gambling generally provide a defense to prosecution for networks that merely provide access to content including Internet gambling without being responsible for that content. And the Digital Millennium Copyright Act created defenses to liability for third party content where ISPs comply with certain provisions of the DMCA.

This has created an interesting dichotomy where, with regard to the content transmitted, ISPs are essentially common carriers; with regard to the communications networks underneath the Internet ISPs are not common carriers.

In the world of copyright, the first legal conflicts were marked by anxiety. Cases began to find ISPs liable as contributors to copyright infringement. ISP trade associations became anxious to find legislative solutions that would protect ISPs. Content owners, who were having business plans disrupted by the information revolution, likewise became anxious to find some measure to curtail the global copying machine known as the Internet. Content owners, unable at times to reach out and touch alleged infringers, saw ISP networks as potential pinch points that could be attacked. Congress, which finds itself able to act on intellectual property concerns with a degree of speed and efficiency not found on other public policy concerns, brought the Digital Millennium Copyright Act (DMCA) to life.

The Digital Millennium Copyright Act was born out of World Intellectual Property Organization treaties in 1996. These new laws are designed to revise intellectual property in the digital age. [Ellison] [Aimster] In an attempt to implement the treaties, the DMCA places notice-and-take-down obligations on ISPs, makes it a crime to circumvent technologies used to protect intellectual property, and establishes royalty payments for webcasters (over the Internet "radio" stations). Dropped from the draft legislation was database protections.

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