Magazine article Information Outlook

Safe Harbors: Online Liability Provisions Should Benefit Information Professionals

Magazine article Information Outlook

Safe Harbors: Online Liability Provisions Should Benefit Information Professionals

Article excerpt

Throughout the process of development, debate, and enactment of he Digital Millennium Copyright Act (DMCA) in the United States, silver linings were not always visible within the clouds. The end result of the legislation certainly poses some challenges for information professionals in the coming years. However, upon further review, there are a number of positives that special librarians can take from the legislation. Most are merely opportunities to alter the direction of the law through the regulatory process. But one possibility involves that portion which offers a limitation on liability for online service providers (OSPs).

Title II of the DMCA limits an OSP's liability for copyright infringement in several key scenarios. The term "service provider" is defined very broadly in some instances ("a provider of online services or network access, or the operator of facilities therefor").(1) Many entities that are not in the business of providing online services may nonetheless take advantage of Title II's protection.(2) The ensuing article will detail the somewhat perplexing and definitely complicated new provisions of the law. No matter how confusing they are, special librarians should consider that the alternative of full exposure to liability would be far worse.

The exemptions from liability created by the DMCA are additional to any defense that an OSP might have under copyright or any other law.(3) In essence, the Act creates certain "safe harbors" for specified OSP activity. If an activity falls within the safe harbor, then the OSP qualifies for the exemption from liability; if the activity does not come within the safe harbor, then the questions of whether the activity in fact constitutes infringement and whether the OSP has any defense are to be decided under traditional copyright analysis. Qualification for any exemption is determined independently; a service provider may or may not qualify for some or all of the exemptions.(4)

How Does an OSP Become Eligible?

Termination Policy. To be eligible for any of the exemptions, an OSP must adopt, reasonably implement, and inform its subscribers and account holders (its "users") of, a policy providing for termination of users who are repeat infringers.(5)

Accommodation of Technical Measures. In addition, an OSP must accommodate and not interfere with "standard" technical measures used by copyright owners to identify and protect copyrighted works. Such technical measures might include, for example, digital watermarks or technological means for preventing copying of a work. In order to qualify as "standard," such a measure must have been developed by a broad consensus of copyright owners and OSPs in a fair multi-industry process, must be available to anyone on reasonable and nondiscriminatory terms, and must not impose substantial costs on OSP's or substantial burdens on OSP systems.(6)

No requirement to Monitor or Access. The Act clearly states that, in order to qualify for the exemptions, an OSP does not need to monitor its service or affirmatively seek out information about copyright infringement on its service (except as part of the standard technical measures discussed above). In addition, the Act states that an OSP does not have to access, remove, or block material in order to qualify for its exemptions if such action is prohibited by law (for example, the Electronic Communications Privacy Act).(7)

Safe Harbors for System Storage and Information Locating Tools

The most explicit 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,(8)

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

(1) the OSP has no actual knowledge that the material is infringing;

(2) the OSP isn't aware of information from which the infringing nature of the material can be discerned;

(3) if the OSP acquires such knowledge or awareness, the OSP acts quickly to remove or block access to the material;

(4) the OSP doesn't get a financial benefit directly attributable to the infringing 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. …

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