DMCA - ANALYSIS - TITLE 2

SAFE HARBORS FOR SYSTEM STORAGE AND INFORMATION LOCATING TOOLS

Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

Safe Harbors for System Storage and Information Locating Tools

The most straightforward exemptions in the Act cover two common OSP activities: (1) storing material (such as a Web page or chat room, for example) on an OSP’s system at the request of a User and (2) referring Users to material at other online locations by means of, for example, a search engine, a list of recommended sites, or a hypertext link.⁴⁰

The Act limits an OSPs liability for copyright infringement based on the material stored or referred to if the OSP meets certain conditions:

1. the OSP doesn’t actually know that the material is infringing;
2. the OSP isn’t aware of information from which the infringing nature of the material is apparent;
3. if the OSP acquires such knowledge or awareness, the OSP acts expeditiously to remove or block access to the material;
4. the OSP doesn’t get a financial benefit directly attributable to the infringing material (for example, a special fee paid by each party that accesses the material) while having the right and ability to control the material; and
5. the OSP complies with the "notice and take down" provisions of the Act (discussed below).⁴¹

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