The Digital Millennium Copyright Act (17 USC § 512) provides some limitations of liability to service providers for copyright infringement by the service provider’s users. In order to take advantage of one (1) of the four (4) categories of protection involving “storage of information on systems or networks at direction of user”, service providers are required to file notice of a designation of agent with the United States Copyright Office (http://www.copyright.gov/onlinesp/agent.pdf). Failure to file the required notice may result in the inability of a service provider to raise certain defenses in copyright infringement litigation.
Four Categories of Conduct
Protection may exist when the service provider’s actions fall into one or more of four separate categories of conduct: 1) transitory communications; 2) system caching; 3) storage of information on systems or networks at direction of user; and 4) information location tools. Each limitation is separate and a service provider who provides all services must comply with the qualifications for each category separately to be covered by the limitation.
Who is a “Service Provider”?
For the purposes of limitations associated with “transitory communications”, category (1) transitory communications, the DMCA defines service provider 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”. 512(k)(1)(A). For the remaining limitations (listed above as (2) system caching; 3) storage of information on systems or networks at direction of user; and 4) information location tools) a service provider is defined much broader as “a provider of online services or network access, or the operator of facilities therefor.” 512(k)(l)(B). This definition would include network services companies (ISPs, search engines, bulletin board system operators, and auction web sites).
Preconditions and Service Provider Standards on User Conduct
Two conditions must be met under all four categories of limitation of liability: 1) the provider must adopt and implement a policy of terminating the accounts of subscribers who repeatedly infringe a third party’s copyright; and 2) the service provider must not interfere with “standard technical measures.” Standard technical measures are measures that copyright owners use to identify or protect copyrighted works, that have been developed by copyright owners and service providers, are available to anyone on nondiscriminatory terms, and do not impose any substantial costs or burdens on service providers.
Transitory Digital Network Communications
Under 17 USC 512(a), a service provider shall not be liable for infringement of copyright if the service provider transmits, routes or provides connections for materials through a system controlled or operated by (or for) the service provider. The following conditions must be met in order for a service provider to be protected by this limitation: “(1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (5) the material is transmitted through the system or network without modification of its content.”
System Caching
Under 17 USC 512(b), a service provider shall not be liable for infringement of copyright by the temporary storage of material on a system or network controlled or operated by or for the service provider if “(A) the material is made available online by a person other than the service provider; (B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and (C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met.”
The conditions which must be meet are “(A) the material … is transmitted to the subsequent users … without modification to its content from the manner in which the material was transmitted from the person …; (B) the service provider … (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person … to prevent or unreasonably impair the intermediate storage to which this subsection applies; (C) the service provider does not interfere with the ability of technology associated with the material to return to the person … the information that would have been available to that person if the material had been obtained by the subsequent users … directly from that person, except that this subparagraph applies only if that technology (i) does not significantly interfere with the performance of the provider’s system or network or with the intermediate storage of the material; (ii) is consistent with generally accepted industry standard communications protocols; and (iii) does not extract information from the provider’s system or network other than the information that would have been available to the person … if the subsequent users had gained access to the material directly from that person; (D) if the person … has in effect a condition that a person must meet prior to having access to the material, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits access to the stored material in significant part only to users of its system or network that have met those conditions and only in accordance with those conditions; and (E) if the person … makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement…, except that this subparagraph applies only if— (i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and (ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.” 512(b)(2).
Information residing on Systems at Discretion of User
Under 17 USC 512 (c), a service provider shall not be liable for infringement of copyright by reason of the storage of material that is posted to the service provider’s website or other information repositories at the direction of a user.
The following conditions must be met in order to qualify for protection, the service provider: (i) must not have actual knowledge that the material is infringing; (ii) must not be aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, the service provider must act expeditiously to remove, or disable access to, the material. If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity. Finally, upon proper notice of a claim of infringement the service provider must respond expeditiously to remove, or disable access to the alleged infringing material.
The limitations on liability in this subsection only apply to a service provider if the service provider has designated an agent to receive notifications of claimed infringement, by making available through its service, including on its website in a location accessible to the public, and by filing a designation of agent form with the Copyright Office, substantially the following information: the name, address, phone number, and electronic mail address of the agent and all other contact information which the Register of Copyrights may deem appropriate. http://www.copyright.gov/onlinesp/agent.pdf
Information Location Tools
Under 17 USC 512(d) a service provider shall not be liable for infringement of copyright by referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link. In order to qualify for this limitation the service provider “(1)(A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (2) does 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; and (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
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