DMCA - ANALYSIS - TITLE 2

GENERAL CONDITIONS FOR ELIGIBILITY

Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

General Conditions for Eligibility

Termination Policy. To be eligible for any of the exemptions, an OSP must adopt, reasonably implement, and inform its subscribers and account holders (its "Users") of, a policy providing for termination of Users who are repeat infringers.³⁷

Accommodation of Technical Measures. In addition, an OSP must accommodate and not interfere with "standard" technical measures used by copyright owners to identify and protect copyrighted works. Such technical measures might include, for example, digital watermarks or technological means for preventing copying of a work. In order to qualify as "standard", such a measure must have been developed by a broad consensus of copyright owners and OSPs in a fair multi-industry process, must be available to anyone on reasonable and nondiscriminatory terms, and must not impose substantial costs on OSPs or substantial burdens on OSP systems.³⁸

No Need to Monitor or Access. The Act makes clear that in order to qualify for the exemptions, an OSP does not need to monitor its service or affirmatively seek out information about copyright infringement on its service (except as part of the standard technical measures discussed in the previous paragraph). In addition, the Act states that an OSP does not have to access, remove, or block material in order to qualify for its exemptions if such action is prohibited by law (such as, for example, the Electronic Communications Privacy Act).³⁹ At the same time, the Conference Report states that the legislation is not intended to discourage OSPs from voluntarily monitoring their sites, and that OSPs do not lose eligibility for the safe harbors by virtue of such monitoring.

1. General Conditions for Eligibility
2. Safe Harbors for System Storage and Information Locating Tools
3. Safe Harbors for System Caching
4. Safe Harbors for Transmission and Routing
5. Extent of Exemptions from Liability
6. Notice and Take-Down Provisions
7. "Take Down" Procedures