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The information on this website is filed
with the United States
Copyright Office and all information of this site is
protected. I have workers which take bits and pieces of the
verb age on this website and scour the net to find any
reference. If copyright infringement is suspected, we
will first act by doing the following before filing suite.
Damages and attorney fees will be assessed for the initial
letter sent. We have had to do this before and will
not hesitate doing it again.
(a)
Transitory Digital Network Communications. — A
service provider shall not be liable for monetary relief,
or, except as provided in subsection (j), for injunctive or
other equitable relief, for infringement of copyright by
reason of the provider's transmitting, routing, or providing
connections for, material through a system or network
controlled or operated by or for the service provider, or by
reason of the intermediate and transient storage of that
material in the course of such transmitting, routing, or
providing connections, if —
(1) the transmission of the material
was initiated by or at the direction of a person other than
the service provider;
(2) the transmission, routing,
provision of connections, or storage is carried out through
an automatic technical process without selection of the
material by the service provider;
(3) the service provider does not
select the recipients of the material except as an automatic
response to the request of another person;
(4) no copy of the material made by
the service provider in the course of such intermediate or
transient storage is maintained on the system or network in
a manner ordinarily accessible to anyone other than
anticipated recipients, and no such copy is maintained on
the system or network in a manner ordinarily accessible to
such anticipated recipients for a longer period than is
reasonably necessary for the transmission, routing, or
provision of connections; and
(5) the material is transmitted
through the system or network without modification of its
content.
(b) System
Caching.—
(1)
Limitation on liability. — A service provider shall
not be liable for monetary relief, or, except as provided in
subsection (j), for injunctive or other equitable relief,
for infringement of copyright by reason of the intermediate
and temporary storage of material on a system or network
controlled or operated by or for the service provider in a
case in which —
(A) the material is made available
online by a person other than the service provider;
(B) the material is transmitted from
the person described in subparagraph (A) through the system
or network to a person other than the person described in
subparagraph (A) at the direction of that other person; and
(C) the storage is carried out through
an automatic technical process for the purpose of making the
material available to users of the system or network who,
after the material is transmitted as described in
subparagraph (B), request access to the material from the
person described in subparagraph (A), if the conditions set
forth in paragraph (2) are met.
(2)
Conditions. — The conditions referred to in paragraph
(1) are that —
(A) the material described in
paragraph (1) is transmitted to the subsequent users
described in paragraph (1)(C) without modification to its
content from the manner in which the material was
transmitted from the person described in paragraph (1)(A);
(B) the service provider described in
paragraph (1) complies with rules concerning the refreshing,
reloading, or other updating of the material when specified
by the person making the material available online in
accordance with a generally accepted industry standard data
communications protocol for the system or network through
which that person makes the material available, except that
this subparagraph applies only if those rules are not used
by the person described in paragraph (1)(A) to prevent or
unreasonably impair the intermediate storage to which this
subsection applies;
(C) the service provider does not
interfere with the ability of technology associated with the
material to return to the person described in paragraph
(1)(A) the information that would have been available to
that person if the material had been obtained by the
subsequent users described in paragraph (1)(C) directly from
that person, except that this subparagraph applies only if
that technology -
(i) does not significantly interfere
with the performance of the provider's system or network or
with the intermediate storage of the material;
(ii) is consistent with generally
accepted industry standard communications protocols; and
(iii) does not extract information
from the provider's system or network other than the
information that would have been available to the person
described in paragraph (1)(A) if the subsequent users had
gained access to the material directly from that person;
(D) if the person described in
paragraph (1)(A) has in effect a condition that a person
must meet prior to having access to the material, such as a
condition based on payment of a fee or provision of a
password or other information, the service provider permits
access to the stored material in significant part only to
users of its system or network that have met those
conditions and only in accordance with those conditions; and
(E) if the person described in
paragraph (1)(A) makes that material available online
without the authorization of the copyright owner of the
material, the service provider responds expeditiously to
remove, or disable access to, the material that is claimed
to be infringing upon notification of claimed infringement
as described in subsection (c)(3), except that this
subparagraph applies only if —
(i) the material has previously been
removed from the originating site or access to it has been
disabled, or a court has ordered that the material be
removed from the originating site or that access to the
material on the originating site be disabled; and
(ii) the party giving the
notification includes in the notification a statement
confirming that the material has been removed from the
originating site or access to it has been disabled or that a
court has ordered that the material be removed from the
originating site or that access to the material on the
originating site be disabled.
(c)
Information Residing on Systems or Networks at Direction of
Users.—
(1) In
general. — A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j),
for injunctive or other equitable relief, for infringement
of copyright by reason of the storage at the direction of a
user of material that resides on a system or network
controlled or operated by or for the service provider, if
the service provider -
(A)(i) does not have actual knowledge
that the material or an activity using the material on the
system or network is infringing;
(ii) in the absence of such actual
knowledge, is not aware of facts or circumstances from which
infringing activity is apparent; or
(iii) upon obtaining such knowledge
or awareness, acts expeditiously to remove, or disable
access to, the material;
(B) does not receive a financial
benefit directly attributable to the infringing activity, in
a case in which the service provider has the right and
ability to control such activity; and
(C) upon notification of claimed
infringement as described in paragraph (3), responds
expeditiously to remove, or disable access to, the material
that is claimed to be infringing or to be the subject of
infringing activity.
(2)
Designated agent. — The limitations on liability
established in this subsection apply to a service provider
only if the service provider has designated an agent to
receive notifications of claimed infringement described in
paragraph (3), by making available through its service,
including on its website in a location accessible to the
public, and by providing to the Copyright Office,
substantially the following information:
(A) the name, address, phone number,
and electronic mail address of the agent.
(B) other contact information which
the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a
current directory of agents available to the public for
inspection, including through the Internet, in both
electronic and hard copy formats, and may require payment of
a fee by service providers to cover the costs of maintaining
the directory.
(3) Elements
of notification. —
(A) To be effective under this
subsection, a notification of claimed infringement must be a
written communication provided to the designated agent of a
service provider that includes substantially the following:
(i) A physical or electronic
signature of a person authorized to act on behalf of the
owner of an exclusive right that is allegedly infringed.
(ii) Identification of the
copyrighted work claimed to have been infringed, or, if
multiple copyrighted works at a single online site are
covered by a single notification, a representative list of
such works at that site.
(iii) Identification of the material
that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to
which is to be disabled, and information reasonably
sufficient to permit the service provider to locate the
material.
(iv) Information reasonably
sufficient to permit the service provider to contact the
complaining party, such as an address, telephone number,
and, if available, an electronic mail address at which the
complaining party may be contacted.
(v) A statement that the complaining
party has a good faith belief that use of the material in
the manner complained of is not authorized by the copyright
owner, its agent, or the law.
(vi) A statement that the information
in the notification is accurate, and under penalty of
perjury, that the complaining party is authorized to act on
behalf of the owner of an exclusive right that is allegedly
infringed.
(B)(i) Subject to clause (ii), a
notification from a copyright owner or from a person
authorized to act on behalf of the copyright owner that
fails to comply substantially with the provisions of
subparagraph (A) shall not be considered under paragraph
(1)(A) in determining whether a service provider has actual
knowledge or is aware of facts or circumstances from which
infringing activity is apparent.
(ii) In a case in which the
notification that is provided to the service provider's
designated agent fails to comply substantially with all the
provisions of subparagraph (A) but substantially complies
with clauses (ii), (iii), and (iv) of subparagraph (A),
clause (i) of this subparagraph applies only if the service
provider promptly attempts to contact the person making the
notification or takes other reasonable steps to assist in
the receipt of notification that substantially complies with
all the provisions of subparagraph (A).
(d)
Information Location Tools. — A service provider
shall not be liable for monetary relief, or, except as
provided in subsection (j), for injunctive or other
equitable relief, for infringement of copyright by reason of
the provider referring or linking users to an online
location containing infringing material or infringing
activity, by using information location tools, including a
directory, index, reference, pointer, or hypertext link, if
the service provider —
(1)(A) does not have actual knowledge
that the material or activity is infringing;
(B) in the absence of such actual
knowledge, is not aware of facts or circumstances from which
infringing activity is apparent; or
(C) upon obtaining such knowledge or
awareness, acts expeditiously to remove, or disable access
to, the material;
(2) does not receive a financial
benefit directly attributable to the infringing activity, in
a case in which the service provider has the right and
ability to control such activity; and
(3) upon notification of claimed
infringement as described in subsection (c)(3), responds
expeditiously to remove, or disable access to, the material
that is claimed to be infringing or to be the subject of
infringing activity, except that, for purposes of this
paragraph, the information described in subsection
(c)(3)(A)(iii) shall be identification of the reference or
link, to material or activity claimed to be infringing, that
is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit the service
provider to locate that reference or link.
(e)
Limitation on Liability of Nonprofit Educational
Institutions. — (1) When a public or other nonprofit
institution of higher education is a service provider, and
when a faculty member or graduate student who is an employee
of such institution is performing a teaching or research
function, for the purposes of subsections (a) and (b) such
faculty member or graduate student shall be considered to be
a person other than the institution, and for the purposes of
subsections (c) and (d) such faculty member's or graduate
student's knowledge or awareness of his or her infringing
activities shall not be attributed to the institution, if —
(A) such faculty member's or graduate
student's infringing activities do not involve the provision
of online access to instructional materials that are or were
required or recommended, within the preceding 3-year period,
for a course taught at the institution by such faculty
member or graduate student;
(B) the institution has not, within
the preceding 3-year period, received more than 2
notifications described in subsection (c)(3) of claimed
infringement by such faculty member or graduate student, and
such notifications of claimed infringement were not
actionable under subsection (f); and
(C) the institution provides to all
users of its system or network informational materials that
accurately describe, and promote compliance with, the laws
of the United States relating to copyright.
(2) For the purposes of this
subsection, the limitations on injunctive relief contained
in subsections (j)(2) and (j)(3), but not those in (j)(1),
shall apply.
(f)
Misrepresentations. - Any person who knowingly
materially misrepresents under this section —
(1) that material or activity is
infringing, or
(2) that material or activity was
removed or disabled by mistake or misidentification,
shall be liable for any damages, including
costs and attorneys' fees, incurred by the alleged
infringer, by any copyright owner or copyright owner's
authorized licensee, or by a service provider, who is
injured by such misrepresentation, as the result of the
service provider relying upon such misrepresentation in
removing or disabling access to the material or activity
claimed to be infringing, or in replacing the removed
material or ceasing to disable access to it.
(g)
Replacement of Removed or Disabled Material and Limitation
on Other Liability.—
(1) No
liability for taking down generally. — Subject to
paragraph (2), a service provider shall not be liable to any
person for any claim based on the service provider's good
faith disabling of access to, or removal of, material or
activity claimed to be infringing or based on facts or
circumstances from which infringing activity is apparent,
regardless of whether the material or activity is ultimately
determined to be infringing.
(2)
Exception. — Paragraph (1) shall not apply with
respect to material residing at the direction of a
subscriber of the service provider on a system or network
controlled or operated by or for the service provider that
is removed, or to which access is disabled by the service
provider, pursuant to a notice provided under subsection
(c)(1)(C), unless the service provider —
(A) takes reasonable steps promptly to
notify the subscriber that it has removed or disabled access
to the material;
(B) upon receipt of a counter
notification described in paragraph (3), promptly provides
the person who provided the notification under subsection
(c)(1)(C) with a copy of the counter notification, and
informs that person that it will replace the removed
material or cease disabling access to it in 10 business
days; and
(C) replaces the removed material and
ceases disabling access to it not less than 10, nor more
than 14, business days following receipt of the counter
notice, unless its designated agent first receives notice
from the person who submitted the notification under
subsection (c)(1)(C) that such person has filed an action
seeking a court order to restrain the subscriber from
engaging in infringing activity relating to the material on
the service provider's system or network.
(3) Contents
of counter notification. — To be effective under this
subsection, a counter notification must be a written
communication provided to the service provider's designated
agent that includes substantially the following:
(A) A physical or electronic signature
of the subscriber.
(B) Identification of the material
that has been removed or to which access has been disabled
and the location at which the material appeared before it
was removed or access to it was disabled.
(C) A statement under penalty of
perjury that the subscriber has a good faith belief that the
material was removed or disabled as a result of mistake or
misidentification of the material to be removed or disabled.
(D) The subscriber's name, address,
and telephone number, and a statement that the subscriber
consents to the jurisdiction of Federal District Court for
the judicial district in which the address is located, or if
the subscriber's address is outside of the United States,
for any judicial district in which the service provider may
be found, and that the subscriber will accept service of
process from the person who provided notification under
subsection (c)(1)(C) or an agent of such person.
(4)
Limitation on other liability. — A service provider's
compliance with paragraph (2) shall not subject the service
provider to liability for copyright infringement with
respect to the material identified in the notice provided
under subsection (c)(1)(C).
(h) Subpoena
to Identify Infringer.—
(1) Request.
— A copyright owner or a person authorized to act on the
owner's behalf may request the clerk of any United States
district court to issue a subpoena to a service provider for
identification of an alleged infringer in accordance with
this subsection.
(2) Contents
of request — The request may be made by filing with
the clerk —
(A) a copy of a notification described
in subsection (c)(3)(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect
that the purpose for which the subpoena is sought is to
obtain the identity of an alleged infringer and that such
information will only be used for the purpose of protecting
rights under this title.
(3) Contents
of subpoena. — The subpoena shall authorize and order
the service provider receiving the notification and the
subpoena to expeditiously disclose to the copyright owner or
person authorized by the copyright owner information
sufficient to identify the alleged infringer of the material
described in the notification to the extent such information
is available to the service provider.
(4) Basis for
granting subpoena. — If the notification filed
satisfies the provisions of subsection (c)(3)(A), the
proposed subpoena is in proper form, and the accompanying
declaration is properly executed, the clerk shall
expeditiously issue and sign the proposed subpoena and
return it to the requester for delivery to the service
provider.
(5) Actions
of service provider receiving subpoena. — Upon
receipt of the issued subpoena, either accompanying or
subsequent to the receipt of a notification described in
subsection (c)(3)(A), the service provider shall
expeditiously disclose to the copyright owner or person
authorized by the copyright owner the information required
by the subpoena, notwithstanding any other provision of law
and regardless of whether the service provider responds to
the notification.
(6) Rules
applicable to subpoena. — Unless otherwise provided
by this section or by applicable rules of the court, the
procedure for issuance and delivery of the subpoena, and the
remedies for noncompliance with the subpoena, shall be
governed to the greatest extent practicable by those
provisions of the Federal Rules of Civil Procedure governing
the issuance, service, and enforcement of a subpoena
duces tecum.
(i)
Conditions for Eligibility.—
(1)
Accommodation of technology. — The limitations on
liability established by this section shall apply to a
service provider only if the service provider —
(A) has adopted and reasonably
implemented, and informs subscribers and account holders of
the service provider's system or network of, a policy that
provides for the termination in appropriate circumstances of
subscribers and account holders of the service provider's
system or network who are repeat infringers; and
(B) accommodates and does not
interfere with standard technical measures.
(2)
Definition. — As used in this subsection, the term
“standard technical measures” means technical measures that
are used by copyright owners to identify or protect
copyrighted works and —
(A) have been developed pursuant to a
broad consensus of copyright owners and service providers in
an open, fair, voluntary, multi-industry standards process;
(B) are available to any person on
reasonable and nondiscriminatory terms; and
(C) do not impose substantial costs on
service providers or substantial burdens on their systems or
networks.
(j)
Injunctions. — The following rules shall apply in the
case of any application for an injunction under
section 502 against a service provider that is not
subject to monetary remedies under this section:
(1) Scope of
relief. — (A) With respect to conduct other than that
which qualifies for the limitation on remedies set forth in
subsection (a), the court may grant injunctive relief with
respect to a service provider only in one or more of the
following forms:
(i) An order restraining the service
provider from providing access to infringing material or
activity residing at a particular online site on the
provider's system or network.
(ii) An order restraining the service
provider from providing access to a subscriber or account
holder of the service provider's system or network who is
engaging in infringing activity and is identified in the
order, by terminating the accounts of the subscriber or
account holder that are specified in the order.
(iii) Such other injunctive relief as
the court may consider necessary to prevent or restrain
infringement of copyrighted material specified in the order
of the court at a particular online location, if such relief
is the least burdensome to the service provider among the
forms of relief comparably effective for that purpose.
(B) If the service provider qualifies
for the limitation on remedies described in subsection (a),
the court may only grant injunctive relief in one or both of
the following forms:
(i) An order restraining the service
provider from providing access to a subscriber or account
holder of the service provider's system or network who is
using the provider's service to engage in infringing
activity and is identified in the order, by terminating the
accounts of the subscriber or account holder that are
specified in the order.
(ii) An order restraining the service
provider from providing access, by taking reasonable steps
specified in the order to block access, to a specific,
identified, online location outside the United States.
(2)
Considerations. — The court, in considering the
relevant criteria for injunctive relief under applicable
law, shall consider —
(A) whether such an injunction, either
alone or in combination with other such injunctions issued
against the same service provider under this subsection,
would significantly burden either the provider or the
operation of the provider's system or network;
(B) the magnitude of the harm likely
to be suffered by the copyright owner in the digital network
environment if steps are not taken to prevent or restrain
the infringement;
(C) whether implementation of such an
injunction would be technically feasible and effective, and
would not interfere with access to no infringing material at
other online locations; and
(D) whether other less burdensome and
comparably effective means of preventing or restraining
access to the infringing material are available.
(3) Notice
and ex parte orders. — Injunctive relief under this
subsection shall be available only after notice to the
service provider and an opportunity for the service provider
to appear are provided, except for orders ensuring the
preservation of evidence or other orders having no material
adverse effect on the operation of the service provider's
communications network.
(k)
Definitions.—
(1) Service
provider. — (A) As used in subsection (a), the term
“service provider” means an entity offering the
transmission, routing, or providing of connections for
digital online communications, between or among points
specified by a user, of material of the user's choosing,
without modification to the content of the material as sent
or received.
(B) As used in this section, other
than subsection (a), the term “service provider” means a
provider of online services or network access, or the
operator of facilities therefore, and includes an entity
described in subparagraph (A).
(2) Monetary
relief. — As used in this section, the term “monetary
relief” means damages, costs, attorneys' fees, and any other
form of monetary payment.
(l) Other
Defenses Not Affected. — The failure of a service
provider's conduct to qualify for limitation of liability
under this section shall not bear adversely upon the
consideration of a defense by the service provider that the
service provider's conduct is not infringing under this
title or any other defense.
(m)
Protection of Privacy. — Nothing in this section
shall be construed to condition the applicability of
subsections (a) through (d) on —
(1) a service provider monitoring its
service or affirmatively seeking facts indicating infringing
activity, except to the extent consistent with a standard
technical measure complying with the provisions of
subsection (i); or
(2) a service provider gaining access
to, removing, or disabling access to material in cases in
which such conduct is prohibited by law.
(n)
Construction. — Subsections (a), (b), (c), and (d)
describe separate and distinct functions for purposes of
applying this section. Whether a service provider qualifies
for the limitation on liability in any one of those
subsections shall be based solely on the criteria in that
subsection, and shall not affect a determination of whether
that service provider qualifies for the limitations on
liability under any other such subsection. |
