DMCA - ANALYSIS - TITLE 2

SAFE HARBORS FOR SYSTEM CACHING

Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

Safe Harbors for System Caching

A third safe harbor in the Act limits an OSP’s liability for system caching, in which an OSP makes a temporary copy of popular Internet material requested by a User so that the OSP can deliver that copy to subsequent Users, which can be done more quickly and efficiently than obtaining the original material for each subsequent User.⁴²

This exemption applies to material (a) that is originally placed online by someone other than the OSP (the "Originator") and (b) that is transmitted from the Originator, through the OSP’s system, to a third party at that third party’s request. To qualify for the exemption from liability for the intermediate and temporary storage of such material, the OSP must meet the following conditions:

1. the OSP’s storage of the cached material must be made through an automatic technical process and must be for the purpose of providing the material to subsequent Users who request the material;
2. the OSP must transmit the cached material to subsequent Users without modifying its content;
3. the OSP must comply with any rules on updating the cached material that are specified by the Originator using a generally accepted industry standard protocol, as long as such rules are not used by the Originator to prevent or unreasonably impair system caching;
4. the OSP must not interfere with technology associated with the cached material that returns certain information to the Originator, as long as such technology doesn’t significantly interfere with the performance of the OSP’s system and is consistent with generally accepted industry standard protocols;
5. if the Originator has placed conditions (such as payment of a fee or entry of a password) on access to the cached material, the OSP must allow access to the cached material only to subsequent Users that have met such conditions; and
6. if the original material from which the cached copy was made has been removed or blocked and a copyright owner provides notice to the OSP (pursuant to certain "notice and take-down" provisions discussed below), the OSP must act expeditiously to remove or block access to the cached material that the copyright owner alleges is infringing.⁴³

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