UNIVERSITY OF CALIFORNIA

GUIDELINES FOR COMPLIANCE WITH

THE ONLINE SERVICE PROVIDER PROVISIONS OF THE

DIGITAL MILLENNIUM COPYRIGHT ACT

I. BACKGROUND

The 1998 Digital Millennium Copyright Act ("DMCA") includes a section entitled the "Online Coypright Infringement Liability Limitation Act" ("Act") which grants online service providers (OSPs) a limitation of liability for vicarious and contributory copyright infringement when its subscribers infringe a third-party’s copyright on-line. (17 U.S.C. § 512.) The University of California provides online service to its students and faculty (or students, faculty, and employees); as such, it meets the definition of an OSP. The limitation is available only under certain conditions and when procedures prescribed in the Act are followed. The DMCA's limitation on OSP liability was adopted as a compromise between demands by online service providers that they not be held liable for the infringing activity of their subscribers and counter-demands by "content providers," e.g., publishers, recording companies, that on-line providers not have absolute limitations on liability.

The DMCA does not require on-line providers to adhere to its procedures, nor does it supersede or alter existing statutory or case law related to copyright. Any defense which would otherwise be available to a provider remains available; however, adherence to the procedures allows a provider to quickly dispose of certain infringement claims without concern for liability either to the alleged infringer (for the removal of the material) or the person claiming infringement.

II. APPLICABILITY TO NON-PROFIT EDUCATIONAL INSTITUTIONS

As noted above, non-profit educational institutions are not exempt from the DMCA definition of a "service provider;" however, the Act contains a special provision for such institutions. (17 U.S.C. § 512(e).) The exception is designed to clarify that not all activity of a faculty member or a graduate student who is an employee performing a teaching or research function will be considered the institution’s activity. Such a faculty member’s or student’s knowledge or awareness of his or her infringing activity will not be attributed to the institution if:

1. the activity does not involve access to instructional materials that are or were "required or recommended" within the preceding three years for a course taught by that faculty member or graduate student;
2. the institution has not received more than two "notifications" (as described below) of infringement by such faculty member or graduate student in the preceding three years; and
3. the institution provides informational materials that accurately describe and promote compliance with federal copyright laws.

III. PREREQUISITES TO LIMITATION OF LIABILITY AFFORDED UNDER THE ACT

A service provider will not be liable for either money damages or injunctive relief for copyright infringement for materials stored or transmitted by a user or by providing links to an online location containing infringing material or activity if:

1. it does not have actual notice of the infringing activity or knowledge of circumstances from which infringing activity is apparent or, if it becomes aware of such, acts expeditiously to remove it;
2. it does not receive a financial benefit from the infringing activity;
3. upon notice of the infringing activity, it responds expeditiously to remove or disable the material; and
4. it has an agent designated to receive notifications whose name, address, phone number, and e-mail address are available on its website and registered with the U.S. Copyright Office. (17 U.S.C. §§ 512(a), (b), (c), and (d).)

The registration of an agent’s name with the Copyright Office is a prerequisite to invoking the liability limitation under the Act. That office provides registration directions and a pdf form for registration at http://lcweb.loc.gov/copyright/onlinesp/, and maintains a publicly accessible on-line and hard-copy lists of all designated agents.

A service provider must adopt and implement a policy that provides for the termination of services to persons who are repeat infringers. The Electronic Communications Policy issued by the Office of the President in draft form for review, includes the University’s policy regarding the termination of on-line services to "repeat infringers." A service provider must accommodate and not interfere with "standard technical measures," as yet undefined, used to identify and protect copyrighted works. (17 U.S.C. § 512(i).)

A service provider is not required to monitor its service or affirmatively seek facts indicating infringing activity, nor is it required to remove or disable access to materials where to do such is otherwise prohibited by law. (17 U.S.C. § 512(m).)

IV. NOTIFICATION PROCEDURES

The Act provides for a mechanistic notification procedure which must be followed in order to take advantage of the limitation of liability.

The procedure consists of the following basic steps:

1. "Notice" is sent to the service provider by the complaining party.
2. The service provider notifies the subscriber and removes or disables the allegedly infringing material.
3. The service provider provides a copy to the complaining party of a timely counter-notice from the subscriber and notifies it that the removed or disabled material will be restored in no less than 10 business days and no more than 14 business days unless the entity notifies the provider that it has sought a court order for injunctive relief.
4. The service provider restores the allegedly infringing material (to avoid liability to the subscriber) if it has not received a timely notice from the complaining party that injunctive relief has been sought.

More detail regarding the notification procedure appears below.

A. Notice from the Complaining Party to the Service Provider

To be effective, a "notice" must be a written communication to a service provider’s designated agent which includes "substantially" the following:

1. a physical or electronic signature of a person authorized to act on behalf of the owner;
2. identification of the copyrighted work alleged to be infringed;
3. identification of the material claimed to be infringing or which is the subject of infringing activity;
4. information sufficient to allow the OSP’s designated agent to contact the complaining party, e.g., address and telephone and e-mail numbers;
5. a statement that the complaining party has a good faith belief that use of the material is unauthorized;
6. a statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner. (17 U.S.C. § 512 (c)(3)(A).)

To be effective, a notice must contain substantially all the information referenced above. If the notice provides substantially the information required in (2), (3), and (4) above, related to the identity of the work, the identity of the specific material within a work alleged to be infringing, and information sufficient to allow a service provider to contact the complaining party, the service provider has an obligation to attempt contact with the complaining party and take other "reasonable steps" to obtain a notice that complies with all requirements. Thus, if a service provider has received substantially all the substantive information, it must attempt to obtain the following required information from the complaining party: a physical or electronic signature, a statement that it has a good faith belief that the use is unauthorized, and a statement that the information is accurate and, under penalty of perjury, a statement that he, she, or it is authorized to act on behalf of the owner (subparagraphs (1), (4), and (5) above). (17 U.S.C. § 512(c)(3)(B).) If this information is not obtained after "reasonable" attempts, the service provider will not be considered to have actual knowledge of infringement or infringing activity and need not follow the "remove and notify" procedure described below.

B. Notice to the Alleged Infringer

A service provider may immediately disable access to or remove the allegedly infringing material or activity without liability to the subscriber, regardless of whether such is ultimately determined to be infringing, provided that the service provider does the following:

1. promptly notifies the subscriber that it has removed or disabled access to the material;
2. provides the complaining party with a copy of the subscriber’s counter-notification (discussed below), if any, and informs said party that it will cease disabling access to the material or activity or replace it in 10 business days; and
3. ceases disabling access to the material or activity or replaces it not less than 10, nor more than 14, business days following receipt of the counter notice unless the service provider’s designated agent receives notice that the complaining party has sought a court order to restrain the subscriber from engaging in the alleged infringing activity. (17 U.S.C. § 512(g).)

C. Counter Notice from Subscriber

Although the Act does not require it to do so, the service provider's designated agent may inform the subscriber that he or she may submit a counter notification if there is reason to believe the notification is mistaken. A counter notice from a subscriber must be a written communication to a service provider’s designated agent which includes "substantially" the following:

1. he subscriber’s physical or electronic signature;
2. identification of the material removed or to which access has been disabled;
3. a statement under penalty of perjury that the subscriber has a "good faith" belief that removal or disablement of the material was a mistake or the material was misidentified;
4. the subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District court (i) in the judicial district where the subscriber’s address is located if the address is in the United States, or (ii) in any judicial district where the service provider may be found if the subscriber’s address is located outside the United States. (17 U.S.C. § 512(g)(3).)

V. MONITORING AND RECORD-KEEPING

The Act does not require a service provider to monitor its service or to seek facts which would indicate infringing activity. Such "policing" activity, in fact, may have the effect of eliminating the liability limitation available under the Act because the provider would no longer be "unaware" of infringing activity—a prerequisite to invoking the liability limitation provided by the DMCA.

A record of all infringement notifications and counter-notifications and actions taken in response to them will, however, provide relevant documentation generally and, specifically, will allow a campus to determine, if necessary, how many complaints have been received about a particular faculty member or graduate student-employee (see section II above).

VI. SUBPOENAS

The DMCA allows a copyright holder to request a federal district court to issue a subpoena to the service provider requiring it to identify the individual who is responsible for the alleged infringement. A subpoena may be requested only after a notification of infringing activity has been provided to the service provider by the copyright owner. If a campus receives such a subpoena, normal procedures for responding to subpoenas should be followed.

VII. FAIR USE

The DMCA does not alter the "fair use" provision of the Copyright Act; accordingly, University guidelines on the use of copyrighted material for teaching and research remain applicable. Reference should be made to the University’s Policy on the Reproduction of Copyrighted Materials for Teaching and Research and accompanying Appendices at http://www.ucop.edu/ucophome/uwnews/copyrep.html#policy and Guidelines for the Reproduction of Copyrighted Materials for Teaching and Research at http://www.ucop.edu/ucophome/uwnews/copyrep.html#intro.

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