DCMA Elibility for Limitations
A party seeking the benefit of the limitations on liability in Title II must qualify as a "service provider." For purposes of the first limitation, relating to transitory communications, "service provider" is defined "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." For the other three limitations, "service provider" is more broadly defined as "a provider of online services or network access, or the operator of facilities therefor."
School and Library networks and operation of Web and .edu sites, qualify under both definitions. In some cases, however, they are also a "user" and active in the decisions about content, especially when faculty or graduate students use the Web in their official capacities. In these cases, the OSP would not be considered "just" an OSP, and the limitations would not apply - except for the special provisions for nonprofit educational institutions. This is why the special provisions for nonprofit higher education are so important.
To be eligible for any of the limitations, a service provider must meet two 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."
Information Residing on Systems or Networks
In order to be eligible for the limitation for infringing material on websites or other information repositories, four conditions must be met:
1. The provider must not have knowledge of the infringing activity, or must not be aware of facts or circumstances from which infringing activity is apparent.
2. 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.
3. Upon receiving proper notification of claimed infringement, the provider must take down or prevent access to the material.
4. Designation of an agent to receive notifications of claimed infringement must be filed with the Copyright Office.
Notice, Designation, and Take Down
The DMCA establishes procedures for proper notification of infringement. Under the notice and takedown procedure, a copyright owner submits notification to the service provider's designated agent. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the OSP is exempt from monetary liability. In addition, the provider is protected from liability for claims based on having taken down the identified material.
In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. And to protect against erroneous or fraudulent notifications, the subscriber may respond to the notice and takedown by filing a counter notification. If the subscriber serves a counter notification, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then the service provider must put the material back up within 10-14 business days after receiving the counter notification, unless the copyright owner files an action seeking a court order against the subscriber.
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