Online Copyright Infringement Liability Limitation Act

Table of contents

1 Overview 2 Take down and put back provisions 2.1 Takedown example 2.2 Requirements to obtain the safe harbor 2.3 Notification of claimed infringement 2.4 Counter notification 2.5 Interpretation of the law 2.6 Providing notice of the designated agent 2.7 Actual knowledge of infringement 3 Other provisions 3.8 512(a) Transitory network communications 3.9 512(b) System caching 3.10 512(c) Information Residing on Systems or Networks At Direction of Users 3.11 512(d) Information Location Tools 3.12 512(e) Limitation on Liability of Nonprofit Educational Institutions 3.13 512(f) Misrepresentations 3.14 512(g) Replacement of Removed or Disabled Material and Limitation on Other Liability 3.15 512(h) Subpoena To Identify Infringer 3.16 512(i) Conditions for Eligibility 3.17 512(j) Injunctions 3.18 512(k,l,n) 3.19 512(m) Protection of Privacy 4 Criticism 5 External links

Overview

The act added section 512 to the Copyright law in Title 17 of the United States Code (Public Law No. 105-304, 112 Stat. 2860, 2877).

This provision of US copyright law is best known for allowing copyright holders to ask that an online service provider (OSP, including ISPs) remove access to copyright infringing material if the copyrighted material is made available through the OSP. It is a powerful device for the protection of copyright on the internet for providers that are located in the United States, though many foreign providers may also respond to such requests for fear of litigation in the United States should they have any significant business interests in the U.S.

In exchange for this, the OSP gains:

• new protection from liability to its own customers as a result of a decision to remove material.
• clear procedures for removing and restoring material.
• a safe harbor against infringement claims, duplicating the protection against copyright infringement liability provided by the Communications Decency Act (CDA).

Take down and put back provisions

These are the most commonly encountered parts of the act. They provide a procedure which gives the OSP a safe harbor so long as it complies with the requirements and follows the notification and counter-notification provisions.

Takedown example

Here's an example of how the takedown procedures would work:

1. Alice puts a copy of Bob's song on her AOL-hosted website.
2. Bob, searching the Internet, finds Alice's copy.
3. Bob sends a letter to AOL's designated agent (registered with the Copyright Office) including:
   1. contact information
   2. the name of the song that was copied
   3. the address of the copied song
   4. a statement that he has a good faith belief that the material is not legal
   5. a statement that, under penalty of perjury, Bob is authorized to act for the copyright holder
   6. his signature
4. AOL takes the song down.
5. AOL tells Alice that they have taken the song down.
6. Alice now has the option of sending a counter-notice to AOL, if she feels the song was taken down unfairly. The notice includes
   1. contact information
   2. identification of the removed song
   3. a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
   4. a statement consenting to the jurisdiction of US Federal District Court of Alice, or if she's outside the US, AOL
   5. her signature
7. AOL then waits 10-14 business days for a lawsuit to be filed by Bob.
8. If Bob does not file a lawsuit, then AOL puts the material back up.

• not have actual knowledge that the material or an activity using the material on the system or network is infringing (512(c)(1)(A)(1)).
• not be aware of facts or circumstances from which infringing activity is apparent (512(c)(1)(A)(2)).
• upon obtaining such knowledge or awareness, must act expeditiously to remove, or disable access to, the material. (512(c)(1)(A)(2) and 512(c)(1)(C))
• not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity (512(c)(1)(B)).
• have a Designated Agent registered with the US Copyright Office to receive notifications of claimed infringement (often called takedown notices). If the designated agent receives a notification which substantially complies with the notification requirements, the OSP now has actual knowledge and must expeditiously disable access to the work. The OSP must make available to the public through its service, including on its web site substantially this information:
  • the name, address, phone number and electronic mail address of the agent.
  • other contact information which the Register of Copyrights may deem appropriate.
• adopt, reasonably implement, and inform subscribers and account holders of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers (512(i)(1)(A)).
• accommodate and not interfere with standard technical measures used to identify and protect copyrighted works (512(i)(1)(B)).

See also: Wikipedia's designated agent

Notification of claimed infringement

If an infringement has occurred a copyright holder may send a written notification of claimed infringement to the designated agent. This must include the following (512(c)(3)(A)(i-vi)):

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Counter notification

An alleged infringer may file a counter notification to the OSP. The counter notification must include (512(g)(3)(A-D)):

(A) A physical or electronic signature of the alleged infringer.

(B) Identification of the material that has been removed or to which access has been disabled and the location before removal.

(C) A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) Their name, address, and telephone number, and a statement that they consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that they will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

The law provides for “expeditious” action. The meaning of expeditious in the context of this law has not yet been determined by the courts. Black's Law Dictionary defines "expeditious" as: "rapidity in action" and "performed with, or acting with, expedition; quick; speedy." In the common law, the term "expeditious" has been interpreted according to the circumstances, allowing more time than "immediate" but not undue delay. Some suggest that the most prudent courses are to comply "immediately" or to seek immediate legal advice from qualified legal counsel. In the commercial online world, taking more than 24 hours may well be viewed as undue delay. However, when legal advice is factored into the equation it is reasonable to give counsel time to review all the facts, verify the necessary elements of the notice and conduct minimal research to ascertain the current state of the law. This may reasonably occur when the material posted appears likely to be covered by a fair use, for fair use is not copyright infringement. So, in some situations it may be reasonable to determine that "expeditious" would take more than 24 hours, and if the OSP was a small not-for-profit provider, or a server run by volunteers, it may not have the resources to obtain a legal opinion with the same speed that a large multinational corporation may have resources at its disposal to comply immediately. There may not even be a person immediately available who is qualified to determine if the notice complies with the standards set forth in the act. Perhaps a reasonable court would take these factors into consideration. We will have to wait and see as the courts in the United States have yet to rule on these issues.

For a commercially run on-line provider taking action within the hour to tell a customer that a takedown notice has been received and informing them that they must immediately remove the content and confirm removal, giving them six to twelve hours to comply; and otherwise informing them that the content will be taken down or their internet connection terminated, may be considered reasonable. Some courts may find this to be too great a burden on an OSP if it receives a large number of communications at the same time or has limited resources to review § 512 notices for substantial compliance. It may also depend on how the notice is sent. If the notice is sent via regular mail or via fax, there may be a lag between the sending of the notice and its reception by those who are able to act upon it. If the notification is received by a mail delivery on a Saturday when the OSPs offices are closed and not acted upon until Monday, that may be considered reasonable.

The other issue to keep in mind is that the delay in responding may not amount to a significant amount of damages and someone who has had their material removed by the § 512 procedure late may be more than satisfied with the result; it is much less expensive than filing a copyright infringement suit in federal court that might revolve around a minor technicality of the law. Indeed one of the purposes of this section was to remove a large number of potential infringement suits from the courts when the facts revolving around infringement were basically undisputed and the damages could be minimized within a short period without the intervention of a US federal district court judge. An infringer may be more than happy to know that the material has been taken down for the minor fee of having a lawyer draft a compliant "take down" notice rather than the costs of drafting, filing, serving and prosecuting a federal copyright infringement action.

It is also useful to remember that another law, the federal Communications Decency Act (CDA) still protects the OSP from liability for content provided by third parties (see below). Even if a removal is found not to be "expeditious" within the meaning of the law and the so-called "safe harbor" under the DCMA is lost, in many cases the OSP may still be protected. Through these two laws there are ways to balance the OSP's intent to assist with the protection of third party copyright and the desire to preserve good customer relations. There is also a question of the infringement that is placed by a third party being an issue of negligence or another tort on the part of the OSP. If the OSP takes steps considered reasonable or is found not to have a duty of care to police potential infringers on the site then the infringement may be considered "innocent" from the point of view of the OSP and the infringer may still be held to be the liable party which posts the infringing work or works.

It is sometimes stated that the OSP needs to give the alleged infringer ten days notice before acting. This is incorrect: the OSP must act expeditiously. The ten day period refers to the counter notification procedure described below after the infringing material has been removed, offering them an opportunity to counter the allegations presented to the OSP not during the stage of the so-called "take down" procedure.

It is sometimes suggested that content must be taken down before notifying the person who provided it. That is also not required, so long as the removal is expeditious. A large connectivity provider with many ISP customers would not be acting reasonably by disconnecting a whole ISP if it received a takedown notice for a web site hosted by that ISP on behalf of one of its customers. The law appears to allow the necessary flexibility to deal reasonably with relaying takedown requests to handle such situations.

Please note: all the hypothetical situations in this section are speculative scenarios and are not settled law. The law will not be completely interpreted until the courts have ruled on the various issues brought up by the law. While the suggestions here may appear to be compliant, a court may hold that none of these suggestions are in complaince with the act.

Providing notice of the designated agent

There is a common practice of providing a link to legal notices at the bottom of the main web page of a site. It may be prudent, though it is not required by the provisions of section 512 of the copyright law, to include the designated agent information on the page the legal link goes to, in addition to any other places where it is available. As long as the site gives reasonable notice that there is a method of compliance, that should be sufficient. Once again the courts have not ruled on the technicalities of posting of these notices.

Actual knowledge of infringement

The law also requires "actual knowledge" of infringement before action must be taken. Actual knowledge is not an opinion about infringement i.e. "I think this is infringing" or "this is copied from another site, therefore it is infringing". Since the OSP may have some potential liability to a customer under contract law for inappropriately removing the customer's material, waiting for infringement notifications before acting would appear to be a prudent course. Then, the material can be removed, with the safe harbor protecting the OSP from liability both from the customer and the third party.

In one situation (not a legal case) an online user of a message board system objected to the posting of a series of questions relating to the Bible on one of the system's private message boards. The questions had been used by The West Wing scriptwriter Aaron Sorkin. The posting involved the fictional President of the United States embarrassing another character in a dramatic scene at a fictional White House party. The online user objecting was correct that it had been used in the TV series. However, Sorkin was not the author of the original material. He had received it in repeatedly forwarded email, modified it and used it in the show. The message contained the original version plus two added paragraphs, not the show version. The original was written by Kent Ashcraft, who had effectively released it as an open letter, a work roughly comparable to a press release that the authors expected will be freely copied for further publication. The message board post was really a very clear case of fair use, not infringement. Even if it had been from the show, the use of the piece as a joke in that context would probably have been fair use [1], [1]. The clear removal of the need to make such error-prone decisions in the very complex provisions of fair use may be one of the gains of OSPs from this law.

Other provisions

512(a) Transitory network communications

Section (a) says that service providers aren't liable just because traffic passes through their networks, so long as it is not stored on their systems and is handled automatically by their systems and they don't control or modify it. Essentially, this says that ISPs aren't responsible for what flows through their networks, even if it is infringing and they know it. There are no takedown provisions.

The key technical distinction between 512(a) and (b), (c) and (d) is the location of the material. In the cases of caches (b), web sites (c) and search engine indexes (d), the information is presumably on systems controlled by the service provider. That is not the case for the situation covered by this subsection.

See section 512(h) below for cases seeking to use 512(c) takedown and 512(h) subpoena procedures for 512(a) situations. The January 20, 2003 ruling in the Verizon case did not use the technical difference mentioned in the previous paragraph. The December 2003 Verizon appeal decision did and overturned the original decision. A further appeal is possible, so the situation remains uncertain. As of February 2004 it is reported that following the December decision, no ISP has complied with a subpoena of this sort and the RIAA has instead commenced copyright infringement actions using non-OCILLA procedures.

512(b) System caching

This says that system caching conducted in standard ways and not interfering with copy protection systems is fine. If the cached material is made available to end users the system provider must follow the takedown and put back provisions. This applies to situations like the Google cache and the proxy and caching servers used by many large ISPs and a very wide range of other providers.

512(c) Information Residing on Systems or Networks At Direction of Users

This applies to personal home pages, web sites, internet providers, message boards and a very wide range of other services. It is the cause of the vast majority of activities relating to this law.

This also contains the takedown procedures described earlier and referenced by other parts of the act.

The December 2003 Verizon decision stated in part that "any notice to an ISP concerning its activity as a mere conduit does not satisfy the condition of § 512(c)(3)(A)(iii) and is therefore ineffective", so these takedown notices are not valid where the content is on the computer of the end user.

512(d) Information Location Tools

This brings search engines like AltaVista into the scope of the takedown and put back system.

512(e) Limitation on Liability of Nonprofit Educational Institutions

This protects nonprofit educational institutions from liability for the actions of faculty and graduate student employees relating to course materials placed online for use within courses provided in the preceding 3 years, provided the institution doesn't receive more than 2 infringement notifications about the same individual in a 3 year period. The institution must provide informational materials which accurately describe and promote compliance with US copyright laws.

512(f) Misrepresentations

This says that anyone who makes a false claim of infringement or false counter-notification is liable for the damages suffered by the other parties, including legal fees.

512(g) Replacement of Removed or Disabled Material and Limitation on Other Liability

This contains the put back provisions described earlier and referenced by other parts of the act.

512(h) Subpoena To Identify Infringer

This provides for subpoenas to identify infringers. Part (h)(2)(A) requires that the request to the court include "a copy of a notification described in subsection (c)(3)(A)" (a takedown notice, see above). Note that 512(c)(3)(A)(iii) states that the notice must identify the allegedly infringing material that is to be removed, and provide reasonably sufficient information for the service provider to locate the material residing on its system.

If the OSP is served with such a subpoena after or at the same time as a valid takedown notice, it must expeditiously provide the information required by the subpoena.

OSPs should exercise caution and ensure that they have received a valid takedown notice before disclosing the identities of their customer. It would be very prudent to seek immediate legal advice if a subpoena is received:

• when a valid takedown notice hasn't been served
• if the notice doesn't identify any infringing material, as required by 512(c)(3)(A)(iii)
• if either the takedown notice or the subpoena is in any other way not in compliance with the requirements.
• if the material is not on the systems of the OSP but on a computer using it as a connection to the internet. Section 512(a) provides protection for simple transfer of data on an ISP network and that section does not provide for takedown and put back procedures.

In 2003, the RIAA appeared to be seeking subpoenas and serving takedown notices which did not comply with these requirements, notably using the subpoena provisions for 512(a) situations, which don't provide for them. Anyone served with such a subpoena should seek the assistance of a lawyer.

On 20 December 2003, the DSL ISP Verizon prevailed on appeal in its case seeking to prevent the use of this section for transitory network communications, the decision reversing a court order to supply customer details. Case documents [1], [1]. A further appeal by the RIAA is possible. The appeal de
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