§ 512. — Limitations on liability relating to material online.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC512]
TITLE 17--COPYRIGHTS
CHAPTER 5--COPYRIGHT INFRINGEMENT AND REMEDIES
Sec. 512. Limitations on liability relating to material online
(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 two 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 noninfringing 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 therefor, 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.
(Added Pub. L. 105-304, title II, Sec. 202(a), Oct. 28, 1998, 112 Stat.
2877; amended Pub. L. 106-44, Sec. 1(d), Aug. 5, 1999, 113 Stat. 222.)
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (h)(6),
are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
Codification
Another section 512 was renumbered section 513 of this title.
Amendments
1999--Subsec. (e). Pub. L. 106-44, Sec. 1(d)(1)(A), substituted
``Limitation on Liability of Nonprofit Educational Institutions'' for
``Limitation on liability of nonprofit educational institutions'' in
heading.
Subsec. (e)(2). Pub. L. 106-44, Sec. 1(d)(1)(B), struck out par.
heading ``Injunctions''.
Subsec. (j)(3). Pub. L. 106-44, Sec. 1(d)(2), substituted ``Notice
and ex parte orders'' for ``Notice and Ex Parte Orders'' in heading.
Effective Date
Pub. L. 105-304, title II, Sec. 203, Oct. 28, 1998, 112 Stat. 2886,
provided that: ``This title [enacting this section and provisions set
out as a note under section 101 of this title] and the amendments made
by this title shall take effect on the date of the enactment of this Act
[Oct. 28, 1998].''
