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Late last year the Digital Millennium Copyright Act (DMCA), codified at 17 USC § 512, was enacted. This legislation significantly expands copyright law. Title II of the DMCA, "Online Copyright Infringement Liability Limitation," contains certain "safe harbors" that may be available to exempt online service providers from copyright liability. "Service provider" is defined broadly to include not only commercial vendors but also other providers of network access or online services, including Internet access, e-mail, chat rooms, and Web page hosting. Indeed, the legislative history indicates that Congress intended to include colleges and universities as well as many businesses in this broader definition. To serve such clients effectively, attorneys should familiarize themselves with the safe harbor provisions.
The four safe harbors. Protection is afforded providers engaged in one or more of the following activities: (1) Transmission and routing, which applies to "conduit only" activities, such as the intermediate and transient storage of material in the course of its traveling between other parties. (2) System caching, which applies to the practice of making a temporary copy of Internet material for transmission to individual subscribers on demand, a practice commonly used to reduce congestion and delay in downloading material from popular Internet sites. (3) System storage, which refers to user-directed storage of material that resides on a network system controlled or operated by the provider, such as server space for a user's Web site or chat room. (4) Information locating tools, which covers services such as hyperlink directories and indexes.
Safe harbor eligibility. Each safe harbor has its particular requirements, but all require that a provider (1) have and implement a policy of terminating from its service repeat online copyright infringers, (2) "accommodate and ... not interfere with standard technical measures" used to identify and protect copyrighted works, and (3) designate with the U.S. Copyright Office, and identify on its service or Web site, an agent to receive notifications of claimed copyright infringement.
Take down and put back procedures. Certain provisions require that, on receipt of a statutorily prescribed notice by a copyright owner or licensee regarding allegedly infringing material, a provider must "block" or "take down" the material from its networks or systems. Such blocked material may be "put back" following receipt of a statutory "counternotice" from the Web site operator, unless the complaining party promptly files a court action to restrain distribution of the blocked material. Compliance with these procedures exempts service providers from liability to both the copyright owner and the Web site operator. Anyone who knowingly misrepresents that certain material is infringing, or that allegedly infringing material has been removed or blocked by mistake, may be liable for any damages incurred by a service provider, user, or copyright owner.
Exemptions from Liability. Where a service provider qualifies for any of the safe harbors, it may escape liability for any monetary damages based on claims of copyright infringement. The exemption from monetary damages includes claims for costs, attorneys fees, and other forms of monetary relief. Injunctive relief is limited when a service provider qualifies for a safe harbor -- although the limitations vary somewhat depending on the safe harbor involved.
Advising Clients. Clients who qualify as service providers should be advised to file immediately an "Interim Designation of Agent to Receive Notification of Claimed Infringement" with the U.S. Copyright Office. This document must contain (1) the full legal name and address of the service provider, (2) the names under which the provider is doing business, (3) the name of the agent designated to receive notice of any claimed infringement, (4) the agent's full mailing address, and (5) the agent's telephone number, fax number, and e-mail address. According to interim Copyright Office regulations "related companies such as parents and subsidiaries are considered separate service providers who must file separate interim designations." The interim designations and filing fees may be mailed to: Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024. The cost of each interim designation is $20. The designated agent information must also be posted on the service provider's site.