FAQ: Questions and Answers

[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: Why does a web host or blogging service provider get DMCA takedown notices? Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous. Question: What does a service provider have to do in order to qualify for safe harbor protection? Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions. In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)] Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)]. Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)? Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512. Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing. Question: Does a service provider have to follow the safe harbor procedures? Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued. Question: How do I file a DMCA counter-notice? Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice. For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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