FAQ: Questions and Answers

[back to notice text] Question: What does "under penalty of perjury" mean? Answer: Law.com offers a good definition of perjury: "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood." [back to notice text] Question: What are the DMCA Safe Harbor Provisions? Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable. [back to notice text] Question: What constitutes copyright infringement? Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission: 1. reproduce (copy) the work; 2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression); 3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a); 4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here. [back to notice text] Question: Can a copyright owner find out the identity of the individual responsible for the allegedly infringing material? Answer: The safe harbor provisions permit a copyright owner to subpoena the identity of the individual allegedly responsible for the infringing activities. [512(h)] Such a subpoena is granted on the condition that the information about the individual's identity will only be used in relation to the protection of the intellectual property rights of the copyright owner. [512(h)(2)(C)] The DMCA subpoena provision does not apply to requests for the identities of users of ISP conduit 512(a) services, but only to users of hosting or linking, for which a takedown may be sent under 512(c)(3)(A). Thus DMCA subpoenas cannot be used to find the identities of users engaged in peer-to-peer filesharing. Recording Industry Assoc. of America v. Verizon Internet Svcs., Inc. [back to notice text] Question: What are the counter-notice and put-back procedures? Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)] A proper counter-notice must contain the following information: The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)] Identification of the material and its location before removal [512(g)(3)(B)] A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)] Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)] If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)] [back to notice text] Question: Does a copyright owner have to specify the exact materials it alleges are infringing? Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)]. However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material. [back to notice text] Question: What are the notice and takedown procedures for web sites? Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information: The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)] The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)]. Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)]. A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)]. A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)]. Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed. [back to notice text] Question: What is section 512 of the DMCA, and what are its various provisions? Answer: The On-Line Copyright Infringement Liability Limitation Act (OCILLA), included as section 512 of the Digital Millennium Copyright Act (DMCA), was passed in 1998. It provides Internet Service Providers (ISPs), such as providers of DSL and dial-up Internet access, as well as other Online Service Providers (OSPs), such as search engines, with a ?safe harbor,? a way to avoid liability for the wrongdoing of their customers. If an ISP meets the criteria set out in section 512, it cannot be held liable for copyright infringement even if its users engage in that activity. Following is a general summary of each of the subsections of section 512. Subsection 512(a) provides a safe harbor for ISPs when their systems or networks transmit, rout, provide connections for, or store infringing material en route to its destination. This subsection only refers to automatic, temporary transmissions over which the ISP exercises no control, such as for file sharing. (See What are the criteria a service provider must sati...? for more information.) Subsection 512(b) provides a safe harbor for ISPs when they cache infringing material on their systems or networks. This subsection only refers to automatic storage such as for efficiency purposes to speed Internet access, etc. The ISP must stop caching the material if it receives notice that the material infringes a copyright. Subsection 512(c) provides a safe harbor for ISPs when they, at the direction of a user, store infringing material on their systems or networks. This subsection only refers to automatic storage such as for websites, blogs, newsgroups, etc. The ISP must stop storing the material if it receives notice that the material infringes a copyright, or if it has reason to believe so. The ISP must also designate an agent to handle claims of copyright infringement and make the contact information of that person available to the public. Paragraph (3) of subsection 512(c) sets out the requirements for sending a ?notice and takedown? request. The copyright owner must, in good faith, identify the copyrighted material, the infringing material, and the location of the infringing material. Subsection 512(d) provides a safe harbor for OSPs for linking to infringing material, such as for search engines, websites with links, etc. The OSP must stop storing the material if it receives notice that the material infringes a copyright, or if it has reason to believe so. Subsection 512(e) provides a special safe harbor for nonprofit educational institutions, such as public schools and universities. While entities are generally liable for the conduct of their employees, 512(e) protects nonprofit educational institutions from liability for the copyright infringement of their teachers and researchers. Nonprofit educational institutions must inform all of their users about copyright law and promote compliance with it. (See How are the safe harbor provisions applied to educ...? for more information.) Subsection 512(f) attempts to limit false and fraudulent claims of copyright infringement under the DMCA. Anyone who fraudulently claims copyright infringement or fraudulently claims that non-infringing material was wrongly removed, or that access to it was wrongfully disabled, is liable to anyone who suffers any damages because of that misrepresentation, including court costs and attorney?s fees. Subsection 512(g) provides a safe harbor for ISPs and OSPs when they remove or disable access to material, but only if they have a good faith belief that it infringes copyright, even if it turns out not to. The ISP or OSP must notify the alleged infringer and copyright owner. Paragraph (3) of subsection 512(g) sets out the requirements for sending a ?counter-notice and put-back? request. The alleged infringer must, in good faith, identify the allegedly infringing material and its location. Subsection 512(h) authorizes copyright owners to subpoena the identities of copyright infringers. If a copyright owner requests such a subpoena from a court, the court must issue it and the ISP must comply with it. (See Can a copyright owner find out the identity of the...? for more information.) Subsection 512(i) requires ISPs and OSPs to terminate the accounts of repeat copyright infringers and to inform all users of this policy. (See What happens if an individual is found to repeated...? for more information.) Subsection 512(j) states that, while ISPs and OSPs can usually only be held liable for money damages if they fail to meet the safe harbor requirements of section 512, sometimes courts can issue injunctions requiring them to terminate the account of a copyright infringer or to deny access to infringing material. In considering whether to grant an injunction, courts must weigh the burden it would place on the ISP/OSP, the degree of harm the copyright owner would suffer without it, and the feasibility of narrowly tailoring the injunction so as not to affect non-infringing material. ISPs/OSPs are generally entitled to notice and an opportunity to respond before courts may issue an injunction on them. Section 512(k) defines an Internet Service Provider (ISP) as an entity that (1) automatically transmits, routes or provides connections for digital online communications of material of a user?s choosing, between or among points specified by the user; or (2) provides online services or network access. The subsection also defines monetary damages, from which ISPs and OSPs are always exempt if they meet the safe harbor provisions, to include damages, court costs, attorney?s fees, and any other form of monetary payment. Section 512(l) states that the failure of an ISP or OSP to take advantage of section 512?s safe harbor provisions may not adversely affect any other defenses it may claim in a suit for copyright infringement. Section 512(m) states that the safe harbor provisions of section 512 apply to ISPs and OSPs even if they do not monitor or otherwise actively seek out infringing material; and even if they gain access to, remove, or disable access to material protected by other statutes, such as privacy laws. Section 512(n) tells courts how to interpret the statute. It states that subsections (a)-(d) of section 512 describe separate and distinct functions of ISPs and that an ISP only qualifies for the safe harbor of each subsection whose requirements it meets. [back to notice text] Question: What does the "reservation of rights" language mean? What are they "waiving" at me? Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.

Topic maintained by Samuelson Law, Technology and Public Policy Clinic