SUMMARY (provided by Jose Camarena)
(1) In Mexico there is no ad hoc legislation, such as the US Digital Millennium Copyright Act (DMCA). The Copyright Law contemplates provisions which accommodate concepts such as fixation, reproduction or communication to the public in the digital environment. The Copyright Law does not make internet service providers (ISPs) liable or provide any safe harbours excluding liability in specific situations like caching, search engine, mere conduit or routing. The exceptions and limitations imposed by the Copyright Law are restrictive in scope and it would be difficult to invoke them in connection with digital rights. The Copyright Law of Mexico does not provide exceptions or limitations to copyright or neighboring rights in connection with the activities of ISPs or other intermediaries. Intermediaries in charge of connecting Internet sites operated by infringers of copyright or neighboring rights, are not clearly liable of infringement, namely indirect infringement, by providing means to the site operators –connecting their sites to an indeterminate number of users, but also providing software that users can employ for file sharing or other purposes- who then perpetrate infringement of rights in a direct fashion. No exception or limitation system can exist in the absence of rights or actions to enforce the same.
(2) Direct infringement has been explored, with success, in connection with works disseminated over the Internet, based on the economic right of access that derives from WIPO Treaties. The access right has been tested in a number of cases related to the film and music industries. The most significant case in Mexico has been MPAA v. SigloX.com. As a result of that case, the site was dismantled, the server seized and one employee convicted.
(3) Secondary liability of intermediaries has been debated at a government level, with the participation of groups or association like the Business Software Alliance (BSA), the Motion Picture Association of America (MPAA), a number of collecting societies, as well as the largest ISPs in the country, that include Telmex and Telefonica. However, they have not convinced that ISPs can be liable for secondary copyright infringement, because the Copyright Law or international treaties do not deal with the issue. Among the proposals made, a bill was introduced in 2010 adopting a three-strike system and using the French HADOPI 2 as a model.
(4) Civil liability tools have been tried. Collective societies have threatened with litigation against ISPs, but not under the provisions contained in the Mexican Copyright Law (because there are none concerning these matters), some of them are instead trying to rely on civil law principles such as subjective liability. However, being civil in nature, it has been questionable whether it can apply to infringement matters deriving from the Copyright Law. Likewise, the civil theory is narrow in scope, and would not easily accommodate to non-common situations dealing with special rights. Moreover, issues like assistance or inducement are additional factors that can complicate the application of civil liability doctrines. For ISPs in Mexico, the balance inclines to their side, taking into account that the Copyright Law does not recognize their liability. Copyright holders cannot invoke any sort of legal actions against intermediaries unless they perform direct infringement. However, as in other jurisdictions, the question remains if it can be justified that intermediaries are held liable of indirect copyright infringement for connecting users, regardless if these latter engage in wrong doing.
(5) The non contractual theory of strict liability could be a way of proceeding against ISPs but effective results seem unlikely. The concept of 'strict liability' is defined in Article 1913 of the Civil Code in the following manner: "When a person operates machines, any instrument or substance that is inherently dangerous [ . . . ] such person is obliged to repair the damage caused by such instruments, even if the person does not act in an unlawful manner, unless that person proves that the damage was a consequence of the inexcusable fault or gross negligence of the injured party." Judicial precedent demonstrates that strict liability is based on a non-contractual theory of liability. Judicial decisions have stated that when a party to an agreement involving 'inherently dangerous' instruments is injured, the basis for imposing strict liability is not found in the agreement itself, but rather in the law. Strict liability will be imposed when dangerous instruments cause damage, regardless of whether a contractual relationship existed between the parties. There are situations in which both contractual liability and strict liability may exist: one cause of action can derive from the breach of the contract, and the other from the use of dangerous instruments. In such a case both causes of action can arise and may be exercised. In comparison, strict liability is closely related to subjective non-contractual liability. In both the damages or injuries are a result of a person's wilful acts. However, under strict liability the person's acts are not actually the source of the liability. Rather, strict liability results from the risk inherent in the use of certain objects. Legal theory classifies this type of liability as 'created risk' liability due to the fact that the person using such objects knows (or should know) the dangers involved in their use. Article 1913 governs only situations in which damages result not from an unlawful act but from a created risk. When the cause of the damages is an unlawful act only, then Article 1910 applies: "A person, while acting in an unlawful manner or against recognized usage, who causes a harm to a third party is obliged to repair the damage, unless it is established that the damage was derived as a result of the inexcusable fault or the gross negligence of the injured party."