1.  Your client EM Systems (EMS) operates an e-mail system. The system allows subscribers to send and receive e-mail (including attachments). EMS does not monitor the e-mail. Once a subscriber has signed on and composed and sent a message or downloaded a message addressed to the subscriber, the message is no longer stored on the EMS server.

EMS has received a notification that its e-mail system is being used to distribute copyrighted material in violation of the rights of the copyright holder. The notification identifies 10 subscribers to the EMS e-mail system that are guilty of copyright infringement that has been carried out through the use of the EMS e-mail system. The notice asks EMS to review mail sent and received by those subscribers prior to delivery and refuse to deliver any additional copyright infringing material.

What advice would you give EMS? Does EMS have to comply under Section 512?  

2.  Assume all of the same facts in Question 1 except for the following: Once a subscriber has signed on and composed and sent a message or downloaded a message addressed to the subscriber, the message is automatically stored on the EMS server for 7 days unless the subscriber gives an instruction to delete the message from the server prior to the end of the 7 day period.

Does this changed fact change your answer to Question 1?

3.  Assume all of the same facts in Question 2 except for the following: Once a subscriber has signed on and composed and sent a message or downloaded a message addressed to the subscriber, the message is automatically stored on the EMS server for 30 days unless the subscriber gives an instruction to delete the message from the server prior to the end of the 30 day period.

Does this changed fact change your answer to Question 2?   

4.  Your client EMS also operates a webhosting service. EMS does not review the content of material placed on the websites of its account holders. EMS has received notification pursuant to Section 512 that one of its account holders has placed copyright infringing material on her website in the form of a copyrighted article published last month in a magazine.

What advice would you give EMS? Can EMS ignore the notification? If not, what should EMS do to comply with Section 512?  
 
5.  Assume you advise EMS to take down the article to comply with the notification received in Question 4. Assume further that EMS follows your advise and takes down the article, but subsequently receives 10 additional notifications related to 10 different articles on the same account holder's website. Does EMS have an obligation to monitor the site for additional instances of copyright infringement or can EMS wait until it is notified?

6.  Another one of your clients, Web Host, Inc. (WHI) operates a webhosting service. It does not review the content of material placed on the websites of its account holders. WHI has received notification pursuant to Section 512 that one of its account holders has placed copyright infringing material on his website in the form of a chapter from a copyrighted book. The notification complies with Section 512.  

After WHI receives the notification, can WHI take down the infringing material without notifying the account holder or does it have to notify him first?

7.  Assume WHI notifies its account holder of the take down notice it received before taking any action. The account holder responds by informing WHI that the chapter is covered by the fair use doctrine. Can WHI refuse to take down the material based on the receipt of this information?

8.  Assume instead that WHI waits to notify its account holder until after it has taken down the infringing material. Thereafter, the account holder notifies WHI that the material that was taken down is not copyright infringing material, but was written by the account holder who holds the copyright in the work.

What would you advise WHI to do after receiving this notification?

9.  WHI has received a notification pursuant to Section 512 that one of its account holders has placed a link to copyright infringing material on her website.

What would you advise WHI to do after receiving this notification? Does WHI have the same legal obligations with regard to the link to infringing material as it does if the material itself is on an account holder's website?