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Complying with the DMCA: Responding to notices of alleged infringement

Title II of the Digital Millennium Copyright Act (the "DMCA"), now Section 512 of the Copyright Act, limits the liability of Internet Service Providers ("ISP") for certain infringements. Most universities and colleges (each a "University") are ISPs for their own communities of students, faculty and staff and, in some cases, for other nonprofit state agencies and organizations. In order to take advantage of some of the DMCA provisions, Universities must take some steps initially and other steps later, to respond to notices we might receive that allege that someone to whom we provide Internet service has infringed the rights of a copyright owner.

Here's what Universities must do to qualify for the protections of this statute:
  1. Designate an agent to receive notices from copyright owners alleging infringements.

  2. Place a link to your own internal copyright information on your homepage, or link to the Copyright Crash Course, and draw attention to the link periodically.

  3. Warn users that their service will be terminated if they repeatedly infringe the rights of copyright owners.

  4. Accommodate and not interfere with standard technical measures that identify and protect rights of copyright owners.

Here's what Universities must do if your agent receives a notice from a copyright owner
alleging an infringement:
  1. Decide whether you can and wish to take advantage of the ISP liability limitation or whether you should handle the complaint in another way.

  2. If you qualify for the ISP limitation and wish to follow the law's detailed procedures, respond to the notice by giving notice to the owner of the page, taking down the allegedly infringing material and, in some cases, participating in the determination of whether fair use or some other exemption from liability may apply.

  3. If the University cannot or does not wish to take advantage of the ISP limitation, respond the way you have responded to any allegation of infringement prior to passage of the DMCA.

 

 

Designating an Agent to receive notices

Title II insulates ISPs from money damages for the infringing activities of their users, but in order to qualify for the limitation, ISPs must make it easy for copyright owners to contact them to give them information about alleged infringements. As you will see below, Universities have to respond to information received in a very specific way. First, however, we have to identify a person at each institution who will receive the notices. The agent must make the determinations described below regarding whether the DMCA limitations apply to us, whether we wish to utilize the detailed procedures and whether a notice received is sufficient under the law.

Agent contact information must be posted on each University's Website and filed with the Copyright Office. There is a suggested form for filing the information at the Copyright Office website. Filing costs $20.00. Filing now would be an interim filing; we must refile when the Copyright Office completes its regulations.

 

Linking to the Copyright Crash Course

The DMCA requires that Universities provide information to all users accurately describing and urging compliance with copyright law. Most Universities have their own versions of copyright information on their Websites, but if you do not, linking to the Copyright Crash Course and periodically calling attention to the link should satisfy this requirement.

 

 

Warning users about termination for repeat infringements

The DMCA also requires that Universities adopt, reasonably implement and inform users of a policy about repeat infringement.

If a University does not already do so, it should have such a termination policy, provide this warning when users receive their Internet accounts and remind them of the policy on the University's website.

Accommodating technical measures

Finally, the DMCA requires that Universities accommodate and not interfere with standard technical measures that identify and protect copyright owners' works. Although these standard measures do not yet exist, the law contemplates their creation as copyright owners and service providers work together to reach consensus through an open, fair and voluntary standards process.

 

Taking advantage of ISP liability limitations

We are entitled to take advantage of the ISP limitations on our liability only if we truly are acting as an ISP, and not as a content provider. In many cases where the person posting the allegedly infringing material is a University employee and the material is work-related, we would not be functioning only as an ISP, but also as a content provider. There are other times, absent an employment relationship with the direct infringer, when we might be vicariously liable (we have the right and ability to control an infringing activity and we derive a benefit from it) or liable for contributory infringement (when we know about the infringement and either participate in it or provide the means by which it is carried out). In those cases we would not be eligible to take advantage of the ISP limitation. Nonetheless, it appears that copyright owners are utilizing the notice and take-down procedure in lieu of other legal remedies available them, so if you receive a notice of alleged infringement for an activity that is not technically one for which you are entitled to relief under Section 512, you may nonetheless, respond to it in good faith, in the anticipation that your response will end the matter. You have no guarantee that it will do so, but it is worth trying, unless you want to pursue some other course of action for another reason or reasons.

So, how does one know what activities are technically covered and what activities are not? The following checklist asks 5 questions about material alleged to infringe. Your answers help to determine whether the University is acting as an ISP or as an ISP and a content provider, and whether the University may wish to be involved in the determination of whether fair use might apply.

1. Is the person responsible for posting the allegedly infringing page an employee of U.T. System Administration or one of its component institutions?

Yes, the person is a staff person, faculty member or student employee.

No, the person has no employment relationship with U.T. System Administration or any of its component institutions.

2. Is the allegedly infringing page work- or class-related, or is it a personal page?

The page is work- or class-related.

The page is a personal page.

3. Is the material

content constituting an online course;

supplemental readings or activities required or recommended at the beginning of a class taught within the last 3 years and placed online by a faculty member or administrator ("basic supplemental materials");

materials placed online by an employee acting in an administrative capacity ("administrative materials");

material other than an online course, basic supplemental materials or administrative materials?

4. If a faculty member or graduate student is responsible for posting the material alleged to infringe, has the University received within the last 3 years more than 2 notices of alleged infringement regarding the individual's pages or postings?

Yes, the University has received more than 2 notices within the last 3 years concerning this individual's pages or postings.

No, the University has received 2 or fewer notices within the last 3 years concerning this individual's pages or postings.

5. Does the University receive a direct financial benefit from the page? For example, does the page support fundraising efforts or is the page part of an online course or otherwise part of the University's educational offerings?

Yes, the University receives a direct financial benefit from the page.

No, the University does not receive a direct financial benefit from the page.

If you checked any of the items shown in green, you are not technically eligible to take advantage of the limitations on liability in Section 512; however, if the copyright owner appears likely to be satisfied with your compliance with the notice and take-down procedure, and you do not consider the matter appropriate for a fair use defense, complying with the take-down request (and hoping the matter is not pursued further) is a reasonable response.

 

Notice and take-down procedure

If the University is eligible for the ISP liability limitation according to the results of the ISP checklist above ("Checklist results"), or otherwise, the agent still has a choice: there may be times when the University will not desire to follow the procedures set out below, as explained later, or it may elect to do the following:

Evaluate the notice to be sure it substantially conforms to the statutory requirements: The notice must have all of the following:

  1. A physical or digital signature of the owner of an exclusive copyright right (i.e., the copyright owner himself or the owner's exclusive licensee of the right(s) to reproduce, distribute, display, perform or create derivatives) or the owner's authorized agent;
  2. A description of the works claimed to be infringed;
  3. A description of the allegedly infringing works, sufficient to enable the agent to find them;
  4. Sufficient information to enable the agent to contact the complainer;
  5. A statement that the complainer believes in good faith that the use of the material is not authorized by the owner, the owner's agent or the law; and
  6. A statement that the information in the notice is accurate and, under penalty of perjury, that the complainer is authorized to act on behalf of the owner of one or more exclusive copyright rights.

If the notice substantially conforms, notify the page owner of the allegation of infringement and secure voluntary take-down of the work or disable access to the work if the University desires to claim the limitation. Under certain circumstances it may be appropriate for the University to participate in the determination of whether fair use or some other exemption may apply that would allow the University to repost the work (see Counter-notification below).

If the notice fails substantially to conform, but the problems are all with requirements 1, 5 or 6 above, in order to take advantage of a special benefit resulting from the notice's nonconformance, the University must contact the copyright owner and try to get the rest of the information. The agent may do this by supplying the complainer with a copy of or a reference to Section 512 (c) (3) (A) (for notices alleging that content infringes) or Section 512 (d) (3) (for notices that allege that information location tools such as links contribute to infringement of a work). These sections describe what a notice must contain. They should be online at the copyright office.

If the complainer sends the rest of the information, notify the page owner of the allegation of infringement and secure voluntary take-down of the work or disable access to the work if the University desires to claim the limitation. The University may wish to participate in the determination of whether fair use or some other exemption may apply in some cases.

If the complainer does not respond, or if the notice is nonconforming with respect to requirements 2, 3 or 4, the agent may ignore the notice, but should save it along with a copy of any correspondence attempting to obtain more information in case the University needs proof that it did not receive a conforming notice and did what is required to try to get one.

 

Counter-notification

After the page owner voluntarily takes down the page or the agent disables access to it, the University may decide to proceed to counter-notification or the agent may receive a substantially conforming counter-notification from the page owner. In either case, the University must do certain things to respond and to preserve another special immunity Title II gives us.

Counter-notices can only claim two things: (i) that the copyright owner is mistaken and that the work is lawfully posted (in other words, that it's a fair use or otherwise legally excused) or (ii) that the work has been misidentified. A page owner may assert that a use of another's work qualifies as a fair use and so the copyright owner is "mistaken" in characterizing it as infringing. In some cases, the page owner will be expected to make this decision individually; in other cases, it will be appropriate for the University to participate in the determination of whether fair use may apply.

Counter-notices from page owners must contain the following:

  1. A physical or digital signature of the page owner;
  2. A description of the material removed and its location before it was removed;
  3. A statement that the page owner believes in good faith that the material was removed by mistake or because it was misidentified;
  4. The page owner's name, address and phone number and his or her consent to jurisdiction of the Federal District Court for that address or any Federal District Court if the address is foreign; and
  5. A statement that the page owner will accept service of process from the complainer.

The University will not be liable to the owner of the page for any harm he or she might suffer because of its actions in disabling access to a page so long as it:

  • Take reasonable steps to notify the page owner about the allegations in any conforming notice;
  • Promptly send a copy of any substantially conforming counter-notice to the complainer indicating that University will restore access in 10 business days; and
  • Restore access to the allegedly infringing work within 10 to 14 business days after the day University receives the counter-notice, unless University first receives a notice from the complainer that he or she has filed an action seeking a court order to restrain the page owner.

If the agent receives notice that the complainer has filed an action seeking a court order to restrain the page owner, do not repost the allegedly infringing work. Forward the notice to the page owner, and to the appropriate University administrator for response.

 

Other responses to infringement allegations: Investigating fair use 

Opting In: Most Universities established procedures for responding to infringement allegations before Congress addressed ISP liability limits. Many of the matters brought to the attention of Universities in the past have involved pages for which they were not the content providers, such as student Websites. Those complaints now can be handled using the ISP procedures described above, though in some circumstances, the University may be involved in determining whether a counter-notification is appropriate (for fair use, for example).

Ineligible: Some of the matters we addressed in the past involved material for which we were the ISP, but also the content providers and for which we would not be eligible for liability limits as an ISP. Course-related reading materials, electronic reserves and departmental websites are examples of these materials. We should continue to respond to such allegations by conducting an investigation into whether the allegedly infringing pages might be authorized by law or otherwise before responding fully to the complainer. But if it appears that the page complained of is infringing, simply taking it down may end the matter.

Opting Out: There may be circumstances where we are eligible to take advantage of ISP liability limitations by following the strict procedures, but we really don't wish to! Once we have registered an agent and complied with other general requirements such as having a termination policy for repeat offenders, we still have a choice every time a notice comes in, because these provisions are completely voluntary, both for copyright owners and for ISPs. *

Universities have a different kind of relationship with their subscribers or account holders than AOL or TimeWarner Cable. Protecting that relationship could matter enough to make strict adherence to the procedures set out in Title II impractical. For example, we may wish to take time to view an allegedly infringing site or page, to contact the owner who may be a student in the midst of exams, a faculty member or administrator, and to secure voluntary take-down or investigate the likelihood that fair use might apply. Such prudent actions may effectively handle the matter with little harm to either the internal relationship or the copyright owner's interests.

There are many ways one might buy a little extra time to review the allegedly infringing site, contact the page owner and secure voluntary take-down, or even investigate fair use. In fact, it is not unreasonable to suggest that for University ISPs, an expeditious response time includes time for such activities. Consider also whether the notice is conforming. If it is not, use the time it would take to get a conforming notice to handle the matter in a reasonable way. The agent might even consider asking the copyright owner for the time it will take, if such activities cannot be performed quickly after receipt of a conforming notice.

Finally, consider what the alternatives to this procedure are for both the copyright owner and ISPs. Both have been resolving complaints for years now without strict procedures, mostly to everyone's satisfaction, and with remarkably few lawsuits. Lawsuits have not been the dispute resolution mechanism of choice in this context and they are not likely to become so any time soon. Both copyright owners and ISPs still have many choices for how they will deal with alleged infringements. Section 512's detailed procedures are just one of the choices, and in some cases, not necessarily the most efficient or most effective choice.

*Note: My thanks to Rodney J. Peterson, then at University of Maryland, for helpful insights into the nature of University interests in considering alternatives.

 



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