Web Sites Can Use ISP Protections
 
September 18, 2002
 

DKSystems Incorporated, a Chicago-based publisher of help-desk management and learning management software, has a Web site.  As the sponsor of the site, it can avail itself of the protections afforded by the Digital Millennium Copyright Act (DMCA).  Although the DMCA was signed into law on October 28, 1998, many corporations do not know that they can avail themselves of the protections of the DMCA.  The act is divided into five titles.  Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.

Title II of the DMCA added Section 512 to the Copyright Act, which created four new limitations on liability for copyright infringement by online service providers.  The limitations are based on the following four categories of conduct by a service provider:  (a) transitory communications; (b) system caching; (c) storage of information on systems or networks at direction of users; and (d) information location tools.

The failure of a service provider to qualify for any of the limitations in Section 512 does not necessarily make it liable for copyright infringement.  The copyright owner must still demonstrate that the provider has infringed, and the provider may still avail itself of any of the defenses, such as fair use, that are available to copyright defendants generally.

Limitation for Transitory Communications 

Section 512(a) limits the liability of service providers when the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else’s request.  This limitation covers acts of transmission, routing or providing connections for the information, as well as the intermediate and transient copies that are made automatically in the operation of a network.  Additional requirements are that:

• transmission must be initiated by a person other than the provider; transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection of material by the service provider

• provider must not determine the recipients of the material

• any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients, and must not be retained for longer than reasonably necessary

• material must be transmitted without modification to its content

Limitation for System Caching

Section 512(b) limits the liability of service providers for online caching.  The limitation applies only to intermediate and temporary storage, when carried out through an automatic technical process for making the material available to subscribers who subsequently request it.  It is subject to the following conditions:

• content of the cached material must not be modified

• provider must comply with rules about “refreshing” material when specified in accordance with a generally accepted industry standard data communication protocol

• provider must not interfere with certain technology that returns “hit” information

• provider must limit users’ access to the material in accordance with conditions on access imposed by the person who posted the material

• material that was posted without the copyright owner’s authorization must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked, at the originating site

Limitation for User’s Information 

Section 512(c) limits the liability of service providers for infringing material placed by users on their systems.  To take advantage of this limitation, the provider must:

• not have the knowledge of the infringing activity

• not receive a financial benefit directly attributable to the infringing activity if the provider has the right and ability to control the infringing activity

• must expeditiously take down or block access to the material upon proper notice of infringement

• must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement

The form for designating an agent with the Copyright Office is available at http://www.loc.gov/copyright/onlinesp.  A list of agents registered with the Copyright Office is at http://www.loc.gov/copyright/onlinesp/list.

Limitation for Linking 

Section 512(d) limits liability for the acts of referring or hypertext linking users to a site that contains infringing material.  To take advantage of this limitation, a provider must:

• not have knowledge that the material is infringing

• not receive a financial benefit directly attributable to the activity if the provider has the right and ability to control the infringing activity

• expeditiously take down or block access to the material upon receiving proper notification of claimed infringement

Section 512(f) provides liability from damages (including attorneys’ fees) based on certain misrepresentations about the status of allegedly infringing material.  Section 512(g) shields a provider from liability for taking down material claimed to be infringing, if the service provider follows certain notification procedures.  Section 512(h) establishes a procedure by which a copyright owner can obtain a subpoena from a federal court ordering a service provider to disclose the identity of a subscriber who is allegedly engaging in infringing activities.  Section 512(i) sets forth two additional conditions that a service provider must meet to be eligible for the limitations:  (1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with “standard technical measures.”

Section 512(k) defines “service providers” entitled to the limitations of the section.  For purposes of the first limitation, relating to transitory communications, “service provider” is defined in Section 512(k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”

For purposes of the other limitations, “service provider” is defined in Section 512(k)(1)(B) as “a provider of online services or network access, or the operator of facilities therefor.”

For more information, contact Larry M. Zanger, toll free at 888-688-8500, or via e-mail at larry.zanger@hklaw.com