Monetary Relief. If an OSP’s activity qualifies for any of the safe harbors in the Act, then the OSP is not liable for any monetary relief for claims of copyright infringement based on that activity. Monetary relief includes damages, court costs, attorney’s fees, and any other form of monetary payment.

Injunctions. If an OSP qualifies for a safe harbor under the Act, then the possible injunctive relief against the OSP is limited. Under any safe harbor, a court may issue an injunction restraining an OSP from providing access to an identified User engaging in infringement by terminating the User’s specified accounts. With respect to the safe harbors for system caching, system storage, and information location tools, a court can also issue an injunction restraining an OSP from providing access to infringing material residing at a particular online site on the OSP’s system. Any other injunctive relief must be necessary to prevent infringement of specified material at a particular online location and must be the least burdensome to the OSP among comparably effective forms of relief. With respect to transmission and routing, a court can also issue an injunction ordering an OSP to take specific reasonable steps to block access to an identified online location outside the U.S.45

The Act also sets forth several additional considerations, including the burden on an OSP’s system, the technical feasibility, and the interference with noninfringing material, that a court must consider in the case of all the safe harbors in deciding whether to grant injunctive relief. The DMCA further limits the liability of nonprofit institutions of higher education that act as OSPs for the infringing acts of their faculty and graduate students when performing teaching or research functions.

Notice and Take-Down Provisions

Certain of the Act’s exemptions apply only if an OSP complies with the notice and take-down provisions of the Act. These provisions allow copyright owners to notify an OSP of allegedly infringing material on the OSP’s system and require the OSP to remove or block access to such material after receiving such notice.

Designated Agent of OSP. An OSP must designate, both to the Copyright Office and on its service, the contact information for an agent that will receive such notices.46

Form and Content of Notice. A notice from a copyright owner must be in writing and must be signed by such copyright owner or his or her agent and must include certain specified information, including an identification of the allegedly infringing material and information reasonably sufficient for the OSP to locate the material or the reference or link to it.47 If the OSP receives a notice that substantially complies with the Act’s requirements, then the OSP must act expeditiously to remove or block access to the material that is alleged to be infringing in order to remain eligible for the exemption from liability.

Misrepresentations. The Act provides that anyone who knowingly materially misrepresents under the Act that material is infringing is liable for any damages incurred by an OSP or a User as a result of the OSP relying on such misrepresentation in removing or blocking material.48