Online Copyright Infringement Liability Limitation Act


The Online Copyright Infringement Liability Limitation Act is United States federal law that creates a conditional 'safe harbor' for online service providers, a group which includes Internet service providers and other Internet intermediaries, by shielding them for their own acts of direct copyright infringement as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

Overview

The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty directive to "maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information" when updating copyright norms for the digital age. In the context of Internet intermediaries, OCILLA attempts to strike this balance by immunizing OSP's for copyright liability stemming from their own acts of direct copyright infringement, as well as from the acts of their users, provided that OSP's comply with two general requirements protecting the rights of authors.
First, the OSP must "adopt and reasonably implement a policy" of addressing and terminating accounts of users who are found to be "repeat infringers." Second, the OSP must accommodate and not interfere with "standard technical measures." "Standard technical measures" are defined as measures that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair and voluntary multi-industry process, are available to anyone on reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.
OSPs may qualify for one or more of the Section 512 safe harbors under § 512-, for immunity from copyright liability stemming from: transmitting, caching, storing, or linking to infringing material. An OSP who complies with the requirements for a given safe harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.
In addition to the two general requirements listed above, all four safe harbors impose additional requirements for immunity. The safe harbor for storage of infringing material under § 512 is the most commonly encountered because it immunizes OSPs such as YouTube that might inadvertently host infringing material uploaded by users.
Taken as a whole, OCILLA's passage represented a victory for telecom and Internet related industry groups over powerful copyright interests who had wanted service providers to be held strictly liable for the acts of their users. However, copyright owners also obtained concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires OSP's seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, and to disclose information about those users who are allegedly infringers.

Safe harbor provision for online storage - § 512(c)

applies to OSPs that store infringing material. In addition to the two general requirements that OSPs comply with standard technical measures and remove repeat infringers, § 512 not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove or disable access to the purported infringing material.

Direct financial benefit

An OSP must "not receive a financial benefit directly attributable to the infringing activity" to qualify for § 512 protection. However, it is not always easy to determine what qualifies as a direct financial benefit under the statute.
One example of an OSP that did receive a direct financial benefit from infringing activity was Napster. In A&M Records, Inc. v. Napster, Inc., the court held that copyrighted material on Napster's system created a "draw" for customers which resulted in a direct financial benefit because Napster's future revenue was directly dependent on increases in user-base. Conversely, in Ellison v. Robertson, the court held that AOL did not receive a direct financial benefit when a user stored infringing material on its server because the copyrighted work did not "draw" new customers. AOL neither "attracted retained… lost…subscriptions" as a result of the infringing material.

Knowledge of infringing material

To qualify for the § 512 notice from the copyright owner, known as notice and take down, and 2) the existence of "red flags."
This is advantageous for OSPs because OCILLA's clear process allows them to avoid making decisions about whether or not material is actually infringing. Such decisions can be complex both because it is difficult to determine whether the copyright has expired on a material without access to complete information such as publication date, and because even copyrighted material can be used in some cases under the doctrine of fair use, the applicability of which is difficult to evaluate.
Instead of making a complex legal determination, OCILLA allows OSPs to avoid liability provided they comply with the terms of the statute, regardless of the validity of any claim of infringement.
Notice from copyright owner
The first way an OSP can be put on notice is through the copyright holder's written notification of claimed infringement to the OSP's designated agent. This must include the following:
See 512 and below if the information is not stored on the system of the OSP but is instead on a system connected to the Internet through it, like a home or business computer connected to the Internet. Legal liability may result if access to material is disabled or identity disclosed in this case.
If a notice which substantially complies with these requirements is received the OSP must expeditiously remove or disable access to the allegedly infringing material. So long as the notice substantially complies with clauses,, and the OSP must seek clarification of any unclear aspects.
In Perfect 10, Inc. v. CCBill LLC, the Ninth Circuit held that the properly constructed notice must exist in one communication. A copyright owner cannot "cobble together adequate notice from separately defective notices" because that would unduly burden the OSP.
While not required for safe harbor protection, the OSP can implement a counter notification process to avoid legal liability to its own customer as a result of taking down the material: After the notice has been complied with the OSP must take reasonable steps to promptly notify the alleged infringer of the action. Note that the OSP is not prohibited from doing so in advance, only required to do so afterward. If there is a counter notification from the alleged infringer, the OSP must respond appropriately to it. Restoring the removed allegedly infringing material in compliance with this process does not cause liability of the OSP for copyright infringement of the material.
There is a common practice of providing a link to legal notices at the bottom of the main web page of a site. It may be prudent, though it is not required by the provisions of section 512 of the copyright law, to include the designated agent information on the page the legal link goes to, in addition to any other places where it is available. As long as the site gives reasonable notice that there is a method of compliance, that should be sufficient. Once again, the courts have not ruled on the technicalities of posting of these notices.
Red flags
The second way that an OSP can be put on notice that its system contains infringing material, for purposes of section 512, is referred to the "red flag" test. The "red flag" test stems from the language in the statute that requires that an OSP not be "aware of facts or circumstances from which infringing activity is apparent."
The "red flag" test contains both a subjective and an objective element. Subjectively, the OSP must have knowledge that the material resides on its system. Objectively, the "infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances."

provisions

  1. # Contact information
  2. # The name of the song that was copied
  3. # The URL of the copied song
  4. # A statement that he has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  5. # A statement that the information in the notification is accurate
  6. # A statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
  7. # A written signature
  8. YouTube takes the video down.
  9. YouTube tells Alice that they have taken the video down and that her channel has a copyright strike.
  10. Alice now has the option of sending a counter-notice to YouTube, if she feels the video was taken down unfairly. The notice includes
  11. # Contact information
  12. # Identification of the removed video
  13. # A statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
  14. # A statement consenting to the jurisdiction of Alice's local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which YouTube is found.
  15. # her signature
  16. If Alice does file a valid counter-notice, YouTube notifies Bob, then waits 10-14 business days for a lawsuit to be filed by Bob.
  17. If Bob does not file a lawsuit, then YouTube may put the material back up.