Digital Millennium Copyright Act, limitations on liability relating to material online

Section 512 of title 17 limits the liability of a service provider for infringement of copyright in four situations, which it describes as separate and distinct functions: transitory digital network communications in subsection (a), system caching in subsection (b), information residing on systems or networks at the direction of users in subsection (c), and information location tools in subsection (d).

A service provider that stores material at the direction of a user is not liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of that storage if it meets the conditions of subsection (c)(1).

To qualify under subsection (c), a provider must have no actual knowledge that the material or an activity using the material is infringing, must not be aware of facts or circumstances from which infringing activity is apparent, or on obtaining such knowledge or awareness must act expeditiously to remove, or disable access to, the material.

To qualify under subsection (c), a provider must also not receive a financial benefit directly attributable to the infringing activity in a case in which it has the right and ability to control that activity. To qualify under subsection (c), a provider must also, on notification of claimed infringement as described in paragraph (3), respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

The subsection (c) limitations apply to a service provider only if it has designated an agent to receive notifications of claimed infringement, by making the agent's name, address, phone number and electronic mail address available through its service, including on its website in a location accessible to the public, and by providing that information to the Copyright Office.

The Copyright Office's rule requires a service provider to designate its agent electronically, through the online registration system on the Office's website. A designation expires and becomes invalid three years after it is registered, unless the service provider renews it by amending it to correct or update information or by resubmitting it without amendment.

To be effective, a notification of claimed infringement must be a written communication provided to the designated agent that includes substantially the following: the signature of a person authorized to act for the owner of an exclusive right, identification of the copyrighted work, identification and location of the material, contact information for the complaining party, a statement of good faith belief that the use is not authorized by the copyright owner, its agent, or the law, and a statement that the information is accurate and, under penalty of perjury, that the complaining party is authorized to act.

A notification that fails to comply substantially with the elements of subsection (c)(3)(A) is not considered in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

If a notification substantially complies with clauses (ii), (iii), and (iv) of subsection (c)(3)(A), which cover the identification of the work, the identification of the material and the contact information for the complaining party, the provider may disregard it in determining actual knowledge or awareness only if it promptly attempts to contact the person making it or takes other reasonable steps to assist in the receipt of a notification that substantially complies with all the elements.

A service provider is not liable to any person for a claim based on its good faith disabling of access to, or removal of, material claimed to be infringing, regardless of whether the material is ultimately determined to be infringing.

For material that a subscriber stored and that the provider removed on a notification, the protection from liability for the removal applies only if the provider promptly takes reasonable steps to notify the subscriber, gives the complainant a copy of any counter notification and says it will replace the material in 10 business days, and replaces the material not less than 10, nor more than 14, business days after receiving the counter notice unless its designated agent first receives notice that the complainant has filed an action seeking a court order to restrain the subscriber.

The section 512 limitations apply to a service provider only if it has adopted and reasonably implemented, and informs subscribers and account holders of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders who are repeat infringers, and accommodates and does not interfere with standard technical measures.

Section 512 does not condition subsections (a) through (d) on a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure.

A service provider is not liable for 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, if it meets the conditions in paragraphs (1) through (3) of subsection (d).

Any person who knowingly materially misrepresents under section 512 that material or activity is infringing, or that it was removed or disabled by mistake or misidentification, is liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by a copyright owner or the owner's authorized licensee, or by a service provider who is injured by the misrepresentation as a result of the service provider relying on it.