The Digital Millennium Copyright Act, signed into law on October
28, 1998, amended the copyright law to provide limitations for service
provider liability relating to material online. New subsection 512(c) of
the copyright law provides limitations on service provider liability with
respect to information residing, at direction of a user, on a system or
network that the service provider controls or operates, if the service
provider has designated an agent for notification of claimed infringement
by providing contact information to the Copyright
Office and through the service provider’s publicly accessible website.
U.S.C. 512(c). A directory of agents is maintained at: http://www.loc.gov/copyright/onlinesp/list/index.html.
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:
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
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
1. Termination Policy. To be eligible for any of the exemptions,
an ISP must adopt, reasonably implement, and inform its subscribers and
account holders (its "Users") of a policy providing for termination of
Users who are repeat infringers.
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
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,
(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 - -;
(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 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:
the ISP doesn't actually know that the material is infringing;
the ISP isn't aware of information from which the infringing nature of
the material is apparent;
if the ISP acquires such knowledge or awareness, the ISP acts expeditiously
to remove or block access to the material;
the ISP doesn't get a financial benefit directly attributable to the infringing
material (for example, a special fee paid by each party that accesses the
material) while having the right and ability to control the material; and
the ISP complies with the "notice and take down" provisions of the Act
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:
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;
the ISP must transmit the cached material to subsequent Users without modifying
.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;
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;
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;
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:
the transmission of the material must have been initiated or directed by
someone other than the ISP;
the activities covered by the exemption must be carried out through an
automatic technical process and not by any selection of material by the
the ISP must not select the recipients of the material except as an automatic
response to another person's request;
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;
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
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
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:
A physical or digital signature of the owner of an exclusive copyright
right (i.e., the copyright owner himself or the owner's exclusive licensee
of the right(s) to reproduce, distribute, display, perform or create derivatives)
or the owner's authorized agent;
A description of the works claimed to be infringed;
A description of the allegedly infringing works, sufficient to enable
the agent to find them;
Sufficient information to enable the agent to contact the complainer;
A statement that the complainer believes in good faith that the use of
the material is not authorized by the owner, the owner's agent or
the law; and
A statement that the information in the notice is accurate and,
under penalty of perjury, that the complainer is authorized to act
on behalf of the owner of one or more exclusive copyright rights.
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.
Report Possible Copyright Infringement