Section
512 Immunity - Digital Millennium Copyright Act
§ 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.