U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

>(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 re-place 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