Regent University will comply with the requirements set forth in Title II of the Digital Millennium Copyright Act of 1998. This new Section 512 of the Copyright Act creates four new limitations on liability for copyright infringement by online service providers.   The failure of a service provider to qualify for any of the limitations in Section 512 does not necessarily make it liable for copyright infringement.  The copyright owner must still demonstrate that the provider has infringed, and the provider may still avail itself of any defenses, such as fair use, that are available to copyright defendants generally. (Section 512(l)).

WHAT IS AN ONLINE SERVICE PROVIDER? | WHAT ARE THE LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGEMENT BY ONLINE SERVICE PROVIDERS? |  LIMITATION FOR TRANSISTORY COMMUNICATIONS? |   LIMITATION FOR SYSTEM CACHING? |   LIMITATION FOR INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT THE DIRECTION OF USERS? |  LIMITATION FOR INFORMATION LOCATION TOOLS? |  SPECIAL RULES REGARDING ELIGIBILITY OF NONPROFIT EDUCATIONAL? | RESPONSE TO NOTICES OF INFRINGEMENT? | ELEMENTS FOR A NOTIFICATION OF CLAIMED INFRINGEMENT? | WHO RECEIVES THE NOTICE OF INFRINGEMENT? | CONTENTS OF COUNTER NOTIFICATION? | TIMES WHEN REGENT UNIVERSITY WILL NOT USE THE ONLINE SERVICE PROVIDER "SAFE HARBOR"? 

What is an online service provider?

For purposes of the first limitation, Section 512(k)(1)(A) defines a "service provider" as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or amng points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received."   For purposes of the other three limitations, Section 512(k)(l)(b) defines "service provider" as a "provider of online services or network access, or the operator of facilities therefor."

In addition, to be eligible for any of the limitations, a service provider must meet two overall conditions: (1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with "standard technical measures." (Section 512(i)). "Standard technical measures" are defined as measures that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair and voluntary multi-industry process, are available to anyone on reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.

What are the limitations on liability for copyright infringement by online service providers?

The limitations are based on the following four categories of conduct by a service provider:

• Transistory communications;
• System caching;
• Storage of information on systems or networks at direction of users; and
• Information location tools.

Each limitation entails a complete bar on monetary damages and restricts the availability of injunctive relief in various respects.

New Section 512 also includes special rules concernng the application of these limitations to nonprofit educational institutions.

Under what circumstances does Regent qualify for the limitation for transistory communications?

In general terms, Section 512(a) limits the liability of service providers in circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else’s request. This limitation covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and transient copies that are made automatically in the operation of a network.

In order to qualify for this limitation, the service provider’s activities must meet the following conditions:

• The transmission must be initiated by a person other than the provider.
• The transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection of material by the service provider.
• The service provider must not determine the recipients of the material.
• Any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients, and must not be retained for longer than reasonably necessary.
• The material must be transmitted with no modification to its content.

Under what circumstances does Regent qualify for the limitation for system caching?

Section 512(b) limits the liability of service providers for the practice of retaining copies, for a limited time, of material that has been made available online by a person other than the provider, and then transmitted to a subscriber at his or her direction. The service provider retains the material so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source on the network.

The benefit of this practice is that it reduces the service provider’s bandwidth requirements and reduces the waiting time on subsequent requests for the same information. On the other hand, it can result in the delivery of outdated information to subscribers and can deprive website operators of accurate "hit" information — information about the number of requests for particular material on a website — from which advertising revenue is frequently calculated. For this reason, the person making the material available online may establish rules about updating it, and may utilize technological means to track the number of "hits."

The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it. It is subject to the following conditions:

• The content of the retained material must not be modified.
• The provider must comply with rules about "refreshing" material— replacing retained copies of material with material from the original location— when specified in accordance with a generally accepted industry standard data communication protocol.
• The provider must not interfere with technology that returns "hit" information to the person who posted the material, where such technology meets certain requirements.
• The provider must limit users’ access to the material in accordance with conditions on access (e.g., password protection) imposed by the person who posted the material.
• Any material that was posted without the copyright owner’s authorization must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked, at the originating site.

Under what circumstances does Regent qualify for the limitation for information residing on systems or networks at the direction of users?

Section 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:

• The provider must not have the requisite level of knowledge of the infringing activity, as described below.
• If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
• Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.

In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement.

Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it.

Under what circumstances does Regent qualify for the limitation for information location tools?

Section 512(d) relates to hyperlinks, online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:

• The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks.
• If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity.
• Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material.

Under what circumstances does Regent qualify for the special rules regarding eligibility of nonprofit educational institutions?

Section 512(e) determines when the actions or knowledge of a faculty member or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability. As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a "person other than the provider," so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met:

• the faculty member or graduate student’s infringing activities do not involve providing online access to course materials that were required or recommended during the past three years;
• the institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing; and
• the institution provides all of its users with informational materials describing and promoting compliance with copyright law.

This "safe harbor" applies to the institution and not to the individual.

What will be the university's response to notices of infringement?

Regent University will follow the following guidelines upon receipt of a notification of claimed infringement:

1. The designated agent will verify that the notification contains all the elements of notification as specified in Section 512(c)(3).   If the notification fails to comply substantially with all the provisions, the university will promptly attempt to contact the person making the notification or take reasonable steps to assist in the receipt of notification that substantially complies with all the provisions.
2. The university shall notify the page owner that a notice of infringement has been received.  If the university wishes to apply the OSP limitation, it will ask for a voluntary removal of the work or may disable access to the work in question.
3. If the owner of the work determines that the notice of infringement is in error, he may respond with a counter-notification.
4. Upon receipt of a counter-notification, the university will promptly provide the person who provided the notification with a copy of the counter-notification and inform that person that it will replace the removed material or cease disabling access to it in 10 business days unless the designated agent first receives notice that the person who submitted the notification 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.
5. Regent University will not tolerate repeat offenders of copyright unfringement.  Repeat offenders will lose network privileges.

What are the required elements for a notification of claimed infringement?

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.

Who receives the notice of infringement?

What are the required contents of counter notification?

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.

Are there times when Regent University will not use the Online Service Provider "safe harbor"?

Yes, Regent University will decide on a case-by-case basis whether it will take advantage of the Online Service Provider "safe harbor."  If the University decides that it has acted as a "content provider" rather than a "service provider,"  it may choose to employ the limitations under fair use or any other limitations available under the law.

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COPYRIGHT BASICS | FAIR USE | COPYRIGHT POLICIES | OBTAINING PERMISSIONS INFRINGEMENT | ONLINE SERVICE PROVIDER |  RESOURCES

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This page created by Regent University Library; updated 2002
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