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Copyright Act
« 17 USC Sec. 511 | Index | 17 USC Sec. 513 »
17 USC Sec. 512 - Limitations on liability relating to material online
(a) Transitory Digital Network Communications. - A service
provider shall not be liable for monetary relief, or, except as
provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the provider's
transmitting, routing, or providing connections for, material
through a system or network controlled or operated by or for the
service provider, or by reason of the intermediate and transient
storage of that material in the course of such transmitting,
routing, or providing connections, if -
(1) the transmission of the material was initiated by or at the
direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or
storage is carried out through an automatic technical process
without selection of the material by the service provider;
(3) the service provider does not select the recipients of the
material except as an automatic response to the request of
another person;
(4) no copy of the material made by the service provider in the
course of such intermediate or transient storage is maintained on
the system or network in a manner ordinarily accessible to anyone
other than anticipated recipients, and no such copy is maintained
on the system or network in a manner ordinarily accessible to
such anticipated recipients for a longer period than is
reasonably necessary for the transmission, routing, or provision
of connections; and
(5) the material is transmitted through the system or network
without modification of its content.
(b) System Caching. -
(1) Limitation on liability. - A service provider shall not be
liable for monetary relief, or, except as provided in subsection
(j), for injunctive or other equitable relief, for infringement
of copyright by reason of the intermediate and temporary storage
of material on a system or network controlled or operated by or
for the service provider in a case in which -
(A) the material is made available online by a person other
than the service provider;
(B) the material is transmitted from the person described in
subparagraph (A) through the system or network to a person
other than the person described in subparagraph (A) at the
direction of that other person; and
(C) the storage is carried out through an automatic technical
process for the purpose of making the material available to
users of the system or network who, after the material is
transmitted as described in subparagraph (B), request access to
the material from the person described in subparagraph (A),
if the conditions set forth in paragraph (2) are met.
(2) Conditions. - The conditions referred to in paragraph (1)
are that -
(A) the material described in paragraph (1) is transmitted to
the subsequent users described in paragraph (1)(C) without
modification to its content from the manner in which the
material was transmitted from the person described in paragraph
(1)(A);
(B) the service provider described in paragraph (1) complies
with rules concerning the refreshing, reloading, or other
updating of the material when specified by the person making
the material available online in accordance with a generally
accepted industry standard data communications protocol for the
system or network through which that person makes the material
available, except that this subparagraph applies only if those
rules are not used by the person described in paragraph (1)(A)
to prevent or unreasonably impair the intermediate storage to
which this subsection applies;
(C) the service provider does not interfere with the ability
of technology associated with the material to return to the
person described in paragraph (1)(A) the information that would
have been available to that person if the material had been
obtained by the subsequent users described in paragraph (1)(C)
directly from that person, except that this subparagraph
applies only if that technology -
(i) does not significantly interfere with the performance
of the provider's system or network or with the intermediate
storage of the material;
(ii) is consistent with generally accepted industry
standard communications protocols; and
(iii) does not extract information from the provider's
system or network other than the information that would have
been available to the person described in paragraph (1)(A) if
the subsequent users had gained access to the material
directly from that person;
(D) if the person described in paragraph (1)(A) has in effect
a condition that a person must meet prior to having access to
the material, such as a condition based on payment of a fee or
provision of a password or other information, the service
provider permits access to the stored material in significant
part only to users of its system or network that have met those
conditions and only in accordance with those conditions; and
(E) if the person described in paragraph (1)(A) makes that
material available online without the authorization of the
copyright owner of the material, the service provider responds
expeditiously to remove, or disable access to, the material
that is claimed to be infringing upon notification of claimed
infringement as described in subsection (c)(3), except that
this subparagraph applies only if -
(i) the material has previously been removed from the
originating site or access to it has been disabled, or a
court has ordered that the material be removed from the
originating site or that access to the material on the
originating site be disabled; and
(ii) the party giving the notification includes in the
notification a statement confirming that the material has
been removed from the originating site or access to it has
been disabled or that a court has ordered that the material
be removed from the originating site or that access to the
material on the originating site be disabled.
(c) Information Residing on Systems or Networks At Direction of
Users. -
(1) In general. - A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for
injunctive or other equitable relief, for infringement of
copyright by reason of the storage at the direction of a user of
material that resides on a system or network controlled or
operated by or for the service provider, if the service provider
-
(A)(i) does not have actual knowledge that the material or an
activity using the material on the system or network is
infringing;
(ii) in the absence of such actual knowledge, is not aware of
facts or circumstances from which infringing activity is
apparent; or
(iii) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
(B) does 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
(C) upon notification of claimed infringement as described in
paragraph (3), responds expeditiously to remove, or disable
access to, the material that is claimed to be infringing or to
be the subject of infringing activity.
(2) Designated agent. - The limitations on liability
established in this subsection apply to a service provider only
if the service provider has designated an agent to receive
notifications of claimed infringement described in paragraph (3),
by making available through its service, including on its website
in a location accessible to the public, and by providing to the
Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail
address of the agent.
(B) other contact information which the Register of
Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of
agents available to the public for inspection, including through
the Internet, in both electronic and hard copy formats, and may
require payment of a fee by service providers to cover the costs
of maintaining the directory.
(3) Elements of notification. -
(A) To be effective under this subsection, a notification of
claimed infringement must be a written communication provided
to the designated agent of a service provider that includes
substantially the following:
(i) A physical or electronic signature of a person
authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have
been infringed, or, if multiple copyrighted works at a single
online site are covered by a single notification, a
representative list of such works at that site.
(iii) Identification of the material that is claimed to be
infringing or to be the subject of infringing activity and
that is to be removed or access to which is to be disabled,
and information reasonably sufficient to permit the service
provider to locate the material.
(iv) Information reasonably sufficient to permit the
service provider to contact the complaining party, such as an
address, telephone number, and, if available, an electronic
mail address at which the complaining party may be contacted.
(v) A statement that the complaining party 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.
(vi) A statement that the information in the notification
is accurate, and under penalty of perjury, that the
complaining party is authorized to act on behalf of the owner
of an exclusive right that is allegedly infringed.
(B)(i) Subject to clause (ii), a notification from a
copyright owner or from a person authorized to act on behalf of
the copyright owner that fails to comply substantially with the
provisions of subparagraph (A) shall not be considered under
paragraph (1)(A) in determining whether a service provider has
actual knowledge or is aware of facts or circumstances from
which infringing activity is apparent.
(ii) In a case in which the notification that is provided to
the service provider's designated agent fails to comply
substantially with all the provisions of subparagraph (A) but
substantially complies with clauses (ii), (iii), and (iv) of
subparagraph (A), clause (i) of this subparagraph applies only
if the service provider promptly attempts to contact the person
making the notification or takes other reasonable steps to
assist in the receipt of notification that substantially
complies with all the provisions of subparagraph (A).
(d) Information Location Tools. - A service provider shall not be
liable for monetary relief, or, except as provided in subsection
(j), for injunctive or other equitable relief, for infringement of
copyright by reason of the provider 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 the
service provider -
(1)(A) does not have actual knowledge that the material or
activity is infringing;
(B) in the absence of such actual knowledge, is not aware of
facts or circumstances from which infringing activity is
apparent; or
(C) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
(2) does 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
(3) upon notification of claimed infringement as described in
subsection (c)(3), responds expeditiously to remove, or disable
access to, the material that is claimed to be infringing or to be
the subject of infringing activity, except that, for purposes of
this paragraph, the information described in subsection
(c)(3)(A)(iii) shall be identification of the reference or link,
to material or activity claimed to be infringing, that is to be
removed or access to which is to be disabled, and information
reasonably sufficient to permit the service provider to locate
that reference or link.
(e) Limitation on Liability of Nonprofit Educational
Institutions. - (1) When a public or other nonprofit institution of
higher education is a service provider, and when a faculty member
or graduate student who is an employee of such institution is
performing a teaching or research function, for the purposes of
subsections (a) and (b) such faculty member or graduate student
shall be considered to be a person other than the institution, and
for the purposes of subsections (c) and (d) such faculty member's
or graduate student's knowledge or awareness of his or her
infringing activities shall not be attributed to the institution,
if -
(A) such faculty member's or graduate student's infringing
activities do not involve the provision of online access to
instructional materials that are or were required or recommended,
within the preceding 3-year period, for a course taught at the
institution by such faculty member or graduate student;
(B) the institution has not, within the preceding 3-year
period, received more than two notifications described in
subsection (c)(3) of claimed infringement by such faculty member
or graduate student, and such notifications of claimed
infringement were not actionable under subsection (f); and
(C) the institution provides to all users of its system or
network informational materials that accurately describe, and
promote compliance with, the laws of the United States relating
to copyright.
(2) For the purposes of this subsection, the limitations on
injunctive relief contained in subsections (j)(2) and (j)(3), but
not those in (j)(1), shall apply.
(f) Misrepresentations. - Any person who knowingly materially
misrepresents under this section -
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by
mistake or misidentification,
shall be liable for any damages, including costs and attorneys'
fees, incurred by the alleged infringer, by any copyright owner or
copyright owner's authorized licensee, or by a service provider,
who is injured by such misrepresentation, as the result of the
service provider relying upon such misrepresentation in removing or
disabling access to the material or activity claimed to be
infringing, or in replacing the removed material or ceasing to
disable access to it.
(g) Replacement of Removed or Disabled Material and Limitation on
Other Liability. -
(1) No liability for taking down generally. - Subject to
paragraph (2), a service provider shall not be liable to any
person for any claim based on the service provider's good faith
disabling of access to, or removal of, material or activity
claimed to be infringing or based on facts or circumstances from
which infringing activity is apparent, regardless of whether the
material or activity is ultimately determined to be infringing.
(2) Exception. - Paragraph (1) shall not apply with respect to
material residing at the direction of a subscriber of the service
provider on a system or network controlled or operated by or for
the service provider that is removed, or to which access is
disabled by the service provider, pursuant to a notice provided
under subsection (c)(1)(C), unless the service provider -
(A) takes reasonable steps promptly to notify the subscriber
that it has removed or disabled access to the material;
(B) upon receipt of a counter notification described in
paragraph (3), promptly provides the person who provided the
notification under subsection (c)(1)(C) with a copy of the
counter notification, and informs that person that it will
replace the removed material or cease disabling access to it in
10 business days; and
(C) replaces the removed material and ceases disabling access
to it not less than 10, nor more than 14, business days
following receipt of the counter notice, unless its designated
agent first receives notice from the person who submitted the
notification under subsection (c)(1)(C) that such person has
filed an action seeking a court order to restrain the
subscriber from engaging in infringing activity relating to the
material on the service provider's system or network.
(3) Contents of counter notification. - To be effective under
this subsection, a counter notification must be a written
communication provided to the service provider's designated agent
that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or
to which access has been disabled and the location at which the
material appeared before it was removed or access to it was
disabled.
(C) A statement under penalty of perjury that the subscriber
has a good faith belief that the material was removed or
disabled as a result of mistake or misidentification of the
material to be removed or disabled.
(D) The subscriber's name, address, and telephone number, and
a statement that the subscriber consents to the jurisdiction of
Federal District Court for the judicial district in which the
address is located, or if the subscriber's address is outside
of the United States, for any judicial district in which the
service provider may be found, and that the subscriber will
accept service of process from the person who provided
notification under subsection (c)(1)(C) or an agent of such
person.
(4) Limitation on other liability. - A service provider's
compliance with paragraph (2) shall not subject the service
provider to liability for copyright infringement with respect to
the material identified in the notice provided under subsection
(c)(1)(C).
(h) Subpoena To Identify Infringer. -
(1) Request. - A copyright owner or a person authorized to act
on the owner's behalf may request the clerk of any United States
district court to issue a subpoena to a service provider for
identification of an alleged infringer in accordance with this
subsection.
(2) Contents of request. - The request may be made by filing
with the clerk -
(A) a copy of a notification described in subsection
(c)(3)(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the purpose for
which the subpoena is sought is to obtain the identity of an
alleged infringer and that such information will only be used
for the purpose of protecting rights under this title.
(3) Contents of subpoena. - The subpoena shall authorize and
order the service provider receiving the notification and the
subpoena to expeditiously disclose to the copyright owner or
person authorized by the copyright owner information sufficient
to identify the alleged infringer of the material described in
the notification to the extent such information is available to
the service provider.
(4) Basis for granting subpoena. - If the notification filed
satisfies the provisions of subsection (c)(3)(A), the proposed
subpoena is in proper form, and the accompanying declaration is
properly executed, the clerk shall expeditiously issue and sign
the proposed subpoena and return it to the requester for delivery
to the service provider.
(5) Actions of service provider receiving subpoena. - Upon
receipt of the issued subpoena, either accompanying or subsequent
to the receipt of a notification described in subsection
(c)(3)(A), the service provider shall expeditiously disclose to
the copyright owner or person authorized by the copyright owner
the information required by the subpoena, notwithstanding any
other provision of law and regardless of whether the service
provider responds to the notification.
(6) Rules applicable to subpoena. - Unless otherwise provided
by this section or by applicable rules of the court, the
procedure for issuance and delivery of the subpoena, and the
remedies for noncompliance with the subpoena, shall be governed
to the greatest extent practicable by those provisions of the
Federal Rules of Civil Procedure governing the issuance, service,
and enforcement of a subpoena duces tecum.
(i) Conditions for Eligibility. -
(1) Accommodation of technology. - The limitations on liability
established by this section shall apply to a service provider
only if the service provider -
(A) has adopted and reasonably implemented, and informs
subscribers and account holders of the service provider's
system or network 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
(B) accommodates and does not interfere with standard
technical measures.
(2) Definition. - As used in this subsection, the term
''standard technical measures'' means technical measures that are
used by copyright owners to identify or protect copyrighted works
and -
(A) have been developed pursuant to a broad consensus of
copyright owners and service providers in an open, fair,
voluntary, multi-industry standards process;
(B) are available to any person on reasonable and
nondiscriminatory terms; and
(C) do not impose substantial costs on service providers or
substantial burdens on their systems or networks.
(j) Injunctions. - The following rules shall apply in the case of
any application for an injunction under section 502 against a
service provider that is not subject to monetary remedies under
this section:
(1) Scope of relief. - (A) With respect to conduct other than
that which qualifies for the limitation on remedies set forth in
subsection (a), the court may grant injunctive relief with
respect to a service provider only in one or more of the
following forms:
(i) An order restraining the service provider from providing
access to infringing material or activity residing at a
particular online site on the provider's system or network.
(ii) An order restraining the service provider from providing
access to a subscriber or account holder of the service
provider's system or network who is engaging in infringing
activity and is identified in the order, by terminating the
accounts of the subscriber or account holder that are specified
in the order.
(iii) Such other injunctive relief as the court may consider
necessary to prevent or restrain infringement of copyrighted
material specified in the order of the court at a particular
online location, if such relief is the least burdensome to the
service provider among the forms of relief comparably effective
for that purpose.
(B) If the service provider qualifies for the limitation on
remedies described in subsection (a), the court may only grant
injunctive relief in one or both of the following forms:
(i) An order restraining the service provider from providing
access to a subscriber or account holder of the service
provider's system or network who is using the provider's
service to engage in infringing activity and is identified in
the order, by terminating the accounts of the subscriber or
account holder that are specified in the order.
(ii) An order restraining the service provider from providing
access, by taking reasonable steps specified in the order to
block access, to a specific, identified, online location
outside the United States.
(2) Considerations. - The court, in considering the relevant
criteria for injunctive relief under applicable law, shall
consider -
(A) whether such an injunction, either alone or in
combination with other such injunctions issued against the same
service provider under this subsection, would significantly
burden either the provider or the operation of the provider's
system or network;
(B) the magnitude of the harm likely to be suffered by the
copyright owner in the digital network environment if steps are
not taken to prevent or restrain the infringement;
(C) whether implementation of such an injunction would be
technically feasible and effective, and would not interfere
with access to noninfringing material at other online
locations; and
(D) whether other less burdensome and comparably effective
means of preventing or restraining access to the infringing
material are available.
(3) Notice and ex parte orders. - Injunctive relief under this
subsection shall be available only after notice to the service
provider and an opportunity for the service provider to appear
are provided, except for orders ensuring the preservation of
evidence or other orders having no material adverse effect on the
operation of the service provider's communications network.
(k) Definitions. -
(1) Service provider. - (A) As used in subsection (a), the term
''service provider'' means an entity offering the transmission,
routing, or providing of connections for digital online
communications, between or among points specified by a user, of
material of the user's choosing, without modification to the
content of the material as sent or received.
(B) As used in this section, other than subsection (a), the
term ''service provider'' means a provider of online services or
network access, or the operator of facilities therefor, and
includes an entity described in subparagraph (A).
(2) Monetary relief. - As used in this section, the term
''monetary relief'' means damages, costs, attorneys' fees, and
any other form of monetary payment.
(l) Other Defenses Not Affected. - The failure of a service
provider's conduct to qualify for limitation of liability under
this section shall not bear adversely upon the consideration of a
defense by the service provider that the service provider's conduct
is not infringing under this title or any other defense.
(m) Protection of Privacy. - Nothing in this section shall be
construed to condition the applicability of subsections (a) through
(d) on -
(1) a service provider monitoring its service or affirmatively
seeking facts indicating infringing activity, except to the
extent consistent with a standard technical measure complying
with the provisions of subsection (i); or
(2) a service provider gaining access to, removing, or
disabling access to material in cases in which such conduct is
prohibited by law.
(n) Construction. - Subsections (a), (b), (c), and (d) describe
separate and distinct functions for purposes of applying this
section. Whether a service provider qualifies for the limitation
on liability in any one of those subsections shall be based solely
on the criteria in that subsection, and shall not affect a
determination of whether that service provider qualifies for the
limitations on liability under any other such subsection.
-SOURCE-
(Added Pub. L. 105-304, title II, Sec. 202(a), Oct. 28, 1998, 112
Stat. 2877; amended Pub. L. 106-44, Sec. 1(d), Aug. 5, 1999, 113
Stat. 222.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Rules of Civil Procedure, referred to in subsec.
(h)(6), are set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
-COD-
CODIFICATION
Another section 512 was renumbered section 513 of this title.
-MISC3-
AMENDMENTS
1999 - Subsec. (e). Pub. L. 106-44, Sec. 1(d)(1)(A), substituted
''Limitation on Liability of Nonprofit Educational Institutions''
for ''Limitation on liability of nonprofit educational
institutions'' in heading.
Subsec. (e)(2). Pub. L. 106-44, Sec. 1(d)(1)(B), struck out par.
heading ''Injunctions''.
Subsec. (j)(3). Pub. L. 106-44, Sec. 1(d)(2), substituted
''Notice and ex parte orders'' for ''Notice and Ex Parte Orders''
in heading.
EFFECTIVE DATE
Pub. L. 105-304, title II, Sec. 203, Oct. 28, 1998, 112 Stat.
2886, provided that: ''This title (enacting this section and
provisions set out as a note under section 101 of this title) and
the amendments made by this title shall take effect on the date of
the enactment of this Act (Oct. 28, 1998).''
« 17 USC Sec. 511 | Index | 17 USC Sec. 513 »
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