DMCA - ANALYSIS - TITLE 2

EXTENT OF EXEMPTIONS FROM LIABILITY

Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

Extent of Exemptions from Liability

The safe harbors of the Act provide somewhat different limitations on different types of remedies usually available for copyright infringement.

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.

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