EFF: EFF bootcamp JBand DMCA

8/14/2019 EFF: EFF bootcamp JBand DMCA

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Requirements for DMCARequirements for DMCAProtectionProtection

Jonathan Band [email protected]



Jonathan Band PLLCTechnology Law and Policy www.policybandwidth.com

Definition of “Service Provider”

• Very broadly defined

• For 512(a), an entity offering the “transmission, routingor providing of connections for digital online

communications”

• For 512(b),(c) & (d), all entities described above, plusany “provider of online services or network access”




Threshold Requirements

• All ISPs must “adopt and reasonably implement” apolicy of terminating subscribers who are “repeatinfringers,” 512(i) [keep records]

• Also must not interfere with “standard technicalmeasures” used by copyright owners

• ISPs must register a Designated Agent to receivenotices with the Copyright Office, 512(c)(2) [see

copyright.gov/onlinesp/]




DMCA Safe Harbors

Applies to four basic functions:

• 17 USC § 512(a): network communications

• 17 USC § 512(b): system caching• 17 USC § 512(c): hosting

• 17 USC § 512(d): information location tools




Digital Network Communications

• The Service Provider is NOT liable when:- “transmitting, routing, or providing connections for, material

through a system or network controlled or operated by or for theservice provider, or the intermediate and transient storage of

such material…”• Activities that are a necessary part of the efficient

transmission of content of the network are exempt fromliability.

- Automatic Technical Processes [transmitting, not initiating,

data].- Automatic Responses to Another [ISP not selecting the

recipients].

- ISP has made no substantive modifications to the content.




System Caching

• ISPs cannot be liable when -

- Material is made available online by a person other thanthe service provider;

- Material is transmitted to users without modification to itscontent;

- Storage is for the purpose of making material available tousers who subsequently request access to it.

In order to receive the exemption, the ISP must comply withrules concerning updating material, or information transmitted

back to the original source of the material.




Information Stored on Service Provider

• A Service Provider cannot be liable for more permanenttypes of storage on systems that it controls or operates(e.g., hosted websites) unless it:

- Has actual knowledge- Is aware of facts or circumstances that make infringing

activity clearly apparent, or

- Receives direct financial benefit attributable to infringingactivity which it has the right and ability to control

- Does not respond expeditiously to claims of infringement(“notice and takedown”)




Information Location ToolsDirectories/Search Engines

• The mere “hyperlinking” to websites and material doesnot attach liability to the service provider.

• However, if there is actual knowledge, awareness, direct

financial benefit or notification - then the exemption canbe lost.




Thank you for your attention!

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EFF: EFF bootcamp JBand DMCA