The University of Cincinnati acts as an ISP for its community of faculty, staff and students. In order for us to take advantage of some of the DMCA provisions, we must take steps to respond to notices we might receive that allege that someone to whom we provide Internet service has infringed the rights of a copyright owner.

Procedures to do now:

• Designate an Interim Agent at UC to receive notices from copyright owners alleging infringements.  Our Interim Agent is currently:
• Frederick H. Siff, PhD
  Vice President, Information Technology & CIO
  University Hall 244; M.L. 0644
  Cincinnati, OH 45221-0644
  Telephone: 513-556-2228
  Facsimile: 513-558-8933
  E-mail: Fred.Siff@UC.Edu
  
• Draw attention to the information concerning the DMCA periodically.
• Warn users that their service will be terminated if they repeatedly infringe the rights of copyright owners.
• Accommodate and not interfere with standard technical measures that identify and protect rights of copyright owners.
If we receive a notice from a copyright owner alleging an infringement:
• Upon receiving notice, the Vice President for Information Technology will inform General Counsel immediately.  General Counsel will determine what action steps, if any, are required to comply with the law.
• We will act immediately upon any such notification we receive, and will contact the complainant  to confirm receipt of the notification.

General Conditions for Eligibility

2. Accommodation of Technical Measures. In addition, an ISP must accommodate and not interfere with "standard" technical measures used by copyright owners to identify and protect copyrighted works. Such technical measures might include, for example, digital watermarks or technological means for preventing copying of a work. In order to qualify as "standard", such a measure must have been developed by a broad consensus of copyright owners and ISPs in a fair multi-industry process, must be available to anyone on reasonable and nondiscriminatory terms, and must not impose substantial costs on ISPs or substantial burdens on ISP systems.

3. No Need to Monitor or Access. The Act makes clear that in order to qualify for the exemptions, an ISP does not need to monitor its service or affirmatively seek out information about copyright infringement on its service (except as part of the standard technical measures discussed in the previous paragraph). In addition, the Act states that an ISP does not have to access, remove, or block material in order to qualify for its exemptions if such action is prohibited by law (such as, for example, the Electronic Communications Privacy Act).

4. Limitation on Liability of Nonprofit Educational Institutions. When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) - - Transitory Digital Network Communications and System Caching - - such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) - - Information Residing On Systems Or Networks At Direction Of Users and Information Location Tools - - such faculty member's or graduate student's knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if--

(A) such faculty member's or graduate student's infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student;

(B) the institution has not, within the preceding 3-year period, received more than 2 notifications of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f) - - Misrepresentations - -; and

(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright.

Safe Harbors

Safe Harbors for System Storage and Information Locating Tools. The most straightforward exemptions in the Act cover two common ISP activities: (a) storing material (such as a Web page or chat room, for example) on an ISP's system at the request of a User and (b) referring Users to material at other online locations by means of, for example, a search engine, a list of recommended sites, or a hypertext link.

The Act limits an ISPs liability for copyright infringement based on the material stored or referred to if the ISP meets certain conditions:
 

Safe Harbors for System Caching.  Another safe harbor in the Act limits an ISP's liability for system caching, in which an ISP makes a temporary copy of popular Internet material requested by a User so that the ISP can deliver that copy to subsequent Users, which can be done more quickly and efficiently than obtaining the original material for each subsequent User.

This exemption applies to material (a) that is originally placed online by someone other than the ISP (the "Originator") and (b) that is transmitted from the Originator, through the ISP's system, to a third party at that third party's request. To qualify for the exemption from liability for the intermediate and temporary storage of such material, the ISP must meet the following conditions:
 

1. the ISP's storage of the cached material must be made through an automatic technical process and must be for the purpose of providing the material to subsequent Users who request the material;
2. the ISP must transmit the cached material to subsequent Users without modifying its content;
3. .the ISP must comply with any rules on updating the cached material that are specified by the Originator using a generally accepted industry standard protocol, as long as such rules are not used by the Originator to prevent or unreasonably impair system caching;
4. the ISP must not interfere with technology associated with the cached material that returns certain information to the Originator, as long as such technology doesn't significantly interfere with the performance of the ISP's system and is consistent with generally accepted industry standard protocols;
5. if the Originator has placed conditions (such as payment of a fee or entry of a password) on access to the cached material, the ISP must allow access to the cached material only to subsequent Users that have met such conditions; and
6. if the original material from which the cached copy was made has been removed or blocked and a copyright owner provides notice to the ISP (pursuant to certain "notice and take-down" provisions discussed below), the ISP must act expeditiously to remove or block access to the cached material that the copyright owner alleges is infringing.

Safe Harbors for Transmission and Routing.  A final safe harbor in the Act covers an ISP's transmission, routing, or providing connections for material through the ISP's system and for intermediate and transient storage of material in the course of such activity. In essence, this safe harbor covers an ISP's activities in acting as a conduit for material traveling between other parties.

To qualify for this exemption, several conditions must be met:

1. the transmission of the material must have been initiated or directed by someone other than the ISP;
2. the activities covered by the exemption must be carried out through an automatic technical process and not by any selection of material by the ISP;
3. the ISP must not select the recipients of the material except as an automatic response to another person's request;
4. the ISP must not make any copy of the material ordinarily accessible to anyone other than intended recipients and must not keep any copy for longer than reasonably necessary for the ISP's transmission, routing, or connection; and
5. the ISP must not modify the content of the material as it transmits it through its system.

Extent of Exemptions from Liability

The safe harbors of the Act provide somewhat different limitations on different types of remedies usually available for copyright infringement.

Monetary Relief. If an ISP's activity qualifies for any of the safe harbors in the Act, then the ISP is not liable for any monetary relief for claims of copyright infringement based on that activity. Monetary relief includes damages, court costs, attorney's fees, and any other form of monetary payment.

Injunctions. If an ISP qualifies for a safe harbor under the Act, then the possible injunctive relief against the ISP is limited. Under any safe harbor, a court may issue an injunction restraining an ISP from providing access to an identified User engaging in infringement by terminating the User's specified accounts. With respect to the safe harbors for system caching, system storage, and information location tools, a court can also issue an injunction restraining an ISP from providing access to infringing material residing at a particular online site on the ISP's system. Any other injunctive relief must be necessary to prevent infringement of specified material at a particular online location and must be the least burdensome to the ISP among comparably effective forms of relief. With respect to transmission and routing, a court can also issue an injunction ordering an ISP to take specific reasonable steps to block access to an identified online location outside the U.S.

The Act also sets forth several additional considerations, including the burden on an ISP's system, the technical feasibility, and the interference with noninfringing material, that a court must consider in the case of all the safe harbors in deciding whether to grant injunctive relief. The DMCA further limits the liability of nonprofit institutions of higher education that act as ISPs for the infringing acts of their faculty and graduate students when performing teaching or research functions.
 

Notice and Take-Down Provisions

Certain of the Act's exemptions apply only if an ISP complies with the notice and take-down provisions of the Act. These provisions allow copyright owners to notify an ISP of allegedly infringing material on the ISP's system and require the ISP to remove or block access to such material after receiving such notice.

Designated Agent of ISP. An ISP must designate, both to the Copyright Office and on its service, the contact information for an agent that will receive such notices.

Form and Content of Notice. A notice from a copyright owner must be in writing and meet the following criteria:
 

Misrepresentations. The Act provides that anyone who knowingly materially misrepresents under the Act that material is infringing is liable for any damages incurred by an ISP or a User as a result of the ISP relying on such misrepresentation in removing or blocking material.

Subpoenas. The Act also provides a procedure by which a copyright owner can obtain from a court a subpoena directing an ISP to disclose to the copyright owner information sufficient to identify an alleged infringer of material as to which the owner has sent a notice to the ISP.
 

"Take Down" Procedures

Exemption from Liability. If an ISP in good faith removes or blocks access to material that it has cached, stored at a User's request, or referred users to, either because the ISP has received notice from a copyright owner or because the ISP has become aware of information from which the infringing nature of the material is apparent, the Act exempts the ISP from any liability for such removal or blocking.

Notice and Putback. In the case where an ISP removes or blocks material stored on the ISP's system at the User's request (such as the User's Web site) because the ISP has received a notice from a copyright owner alleging infringement, the ISP must take additional steps designed to protect the User's rights, and which may lead to putting the material back on the system.

The ISP must take reasonable steps to promptly notify the User that the ISP has removed or blocked the material. The User may then send a "counter notification" to the ISP stating that the removal or blocking was a result of a mistake or a misidentification of the material. (The Act provides for liability to the ISP and the copyright owner for knowing material misrepresentation in such counter notification.

If the counter notification complies with the statutory requirements, then the ISP, to remain exempt from liability for the "take down", must provide a copy of the counter notification to the copyright owner that sent the original notice. Unless such copyright owner then notifies the ISP that the owner has filed a court action seeking to restrain the alleged infringement, the ISP must replace or unblock the material within 10 to 14 business days of receiving the counter notification.