Copyright infringement is a growing concern for businesses or individuals with an internet presence. In order to prevent onging infringement, a take down request may be sent to the infringing party adressing the infringement. In addition to the owner of the website, the online service provider (OSP) may also be liable for the display of the infringing material. Congress enacted a safe harbor within The Online Copyright Infringement Liability Limitation Act (OCILLA) to OSPs who promptly take down content once they have received notice that they are infringing another’s copyrights. The takedown request is a powerful device for the protection of copyright on the Internet.
Service Provider Defined.
The OCILLA provides a definition of “service provider” for purposes of the limitation as follows:
• an entity offering the transmission, routing, or providing of connections for digital online communications between or among points specified by a user, or material of the user’s choosing, without modification as to the content of the material as sent or received; and
• a provider of online services or network access, or the operator of facilities therefore.
All entities whose services fit these descriptions may qualify with regard to those activities. However, to the extent the functions of the OSP involve creation and posting of content, choosing recipients of messages or controlling users, the limitation does not apply and regular copyright rules respecting proper clearance, as well as fair use and other defenses, are applicable.
Benefits to Online Service Providers and Customers
OCILLA provides the following benefits to OSPs:
• new protection from liability to its own customers as a result of a decision to remove material;
• clear procedures for removing and restoring material; and
• a safe harbor against infringement claims, duplicating the protection against copyright infringement liability provided by the Communications Decency Act.
Customers gain through a reduced chance that works will be removed unnecessarily by an OSP which hasn’t received an infringement complaint.
Requirements to Obtain the Safe Harbor
To obtain the safe harbor the OSP must:
• not have actual knowledge that the material or an activity using the material on the system or network is infringing;
• not be aware of facts or circumstances from which infringing activity is apparent;
• upon obtaining such knowledge or awareness, act expeditiously to remove, or disable access to, the material;
• 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
• have a designated agent registered with the U.S. Copyright Office to receive notifications of claimed infringement, which are also called takedown notices. If the designated agent receives a notification which substantially complies with the notification requirements, the OSP now has actual knowledge and must expeditiously disable access to the work.
The OSP must make available to the public through its service, including on its Web site substantially this information:
• the name, address, phone number and electronic mail address of the agent
• other contact information which the Register of Copyrights may deem appropriate
The OSP must also:
• adopt, reasonably implement, and inform subscribers and account holders of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers and
• accommodate and not interfere with standard technical measures used to identify and protect copyrighted works.
Notification of claimed infringement
If an infringement has occurred a copyright holder may send a written notification of claimed infringement to the designated agent. If a notice which substantially complies with the requirements of OCILLA is received, the OSP must expeditiously remove or disable access to the allegedly infringing material. After the notice has been complied with, the OSP must take reasonable steps to promptly notify the alleged infringer of the action. If there is a counter notification from the alleged infringer, the OSP must respond appropriately to it. If the OSP complies with this and the counter notification procedures, it is safe from legal liability to its own customer as a result of taking down the material.
An alleged infringer may file a counter notification to the OSP. Once a valid counter notification has been received the OSP must:
• promptly provide the person who filed the original notification with a copy of the counter notification and inform them that the material will be replaced or access to it restored in 10 business days and
• replace the material and cease disabling access to it not less than 10 and not more than 14 business days following receipt of the counter notification. This does not apply, and the material should not be replaced, if the designated agent receives notification that legal action to seek a court order to restrain the subscriber from engaging in infringing activity to the material has been commenced.
Actual knowledge of infringement
The law requires “actual knowledge” of infringement before action must be taken. Because the OSP may have some potential liability to a customer under contract law for inappropriately removing the customer’s material, waiting for infringement notifications before acting is a prudent course to take. Then, the material can be removed, with the safe harbor protecting the OSP from liability both from the customer and the third party.
Additional Provisions of OCILLA
• The section about transitory network communications says that service providers aren’t liable just because traffic passes through their networks, so long as it is not stored on their systems and is handled automatically by their systems and they don’t control or modify it. Essentially, this says that Internet Service Providers (ISPs) aren’t responsible for what flows through their networks, even if it is infringing and they know it. There are no takedown provisions
• The section about system caching says that system caching conducted in standard ways and not interfering with copy protection systems is fine. If the cached material is made available to end users the system provider must follow the takedown and put back provisions.
• The section about information residing on systems or networks at direction of users applies to personal home pages, Web sites, Internet providers, message boards and a very wide range of other services. It is the cause of the vast majority of activities relating to this law.
• The section about limitation on liability of nonprofit educational institutions protects nonprofit educational institutions from liability for the actions of faculty and graduate student employees relating to course materials placed online for use within courses provided in the preceding three years, provided the institution doesn’t receive more than two infringement notifications about the same individual in a three-year period. The institution must provide informational materials which accurately describe and promote compliance with U.S. copyright laws.
• The section about misrepresentations says that anyone who makes a false claim of infringement or false counter-notification is liable for the damages suffered by the other parties, including legal fees.
Limitations on Relief
A service provider that fails to satisfy one of the limitations of liability set forth in OCILLA may find itself charged with copyright infringement, and thus subject to many remedies. However, a service provider who succeeds in invoking one of OCILLA’s safe harbors is exempt from monetary damages and equitable relief apart from injunctions.
Notwithstanding its limitations on liability, OCILLA still allows injunctions to issue against those service providers who find shelter within its safe harbors, subject to limitation as to their scope. OCILLA creates two types of injunctive relief, depending on which limitation of liability is implicated.