TITLE 17. COPYRIGHTS
CHAPTER 5. COPYRIGHT INFRINGEMENT AND REMEDIES
17 USC § 512 (2003)
§ 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.