Using the CDA and the DMCA to Limit Liability for Publication Torts and Copyright Infringement

By Lee T. Gesmer, Esq.  Email
 

This paper was first presented at Massachusetts Continuing Legal Education's 2001 Internet and E-Commerce Conference, held in Boston, Massachusetts on December 6, 2001

Taken together, the Digital Millennium Copyright Act (“DMCA”) and the Communications and Decency Act (“CDA”) provide significant protection against copyright infringement and publication torts which arise from postings made by third parties on Internet websites.  This article discusses the protection that these statutes provide, and what operators of web sites must do to ensure that they take full advantage of the protection provided by these laws.

Introduction

            The problem of whether interactive computer services that published third-party content would be treated as “publishers” (and therefore, according to common law principles, liable for illegal postings by their members) or “distributors” (and therefore not legally responsible for member postings unless they had knowledge of illegality) arose in the pre-Internet era of the early 1990s.  The issue became more pressing as the Internet became a popular communications medium in the mid-1990s. The problem facing Internet Service Providers (“ISPs”) and other interactive computer service providers was how they could protect themselves from liability that might arise based on information that was posted by third parties without any direct involvement by the service provider.  The service providers voiced concern that, given the millions of users and the enormous volume of communication passing through their computer systems, it was impossible for them to responsibly police all communications, or investigate and act responsibly when receiving complaints.

Cases pre-dating the CDA and the DMCA highlighted the tension between the policy goal of encouraging ISPs to transmit third-party content without fear of liability, and the need to hold ISPs liable under certain circumstances.

For example, in Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M. D. Fla. 1993), a pre-Internet case, the operator of a bulletin board service was treated as a publisher and held liable as a direct copyright infringer, despite its lack of knowledge, based on the posting of materials provided by a customer, in effect imposing strict liability on the service. 

Two years later, a court took a different view of ISP liability based on third party content.  In Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N. D. Cal. 1995), an internet services provider who transmitted material that infringed the plaintiff’s copyright was held not liable where the ISP’s system was used only to create a copy submitted by a third party, and the ISP could not verify a claim of infringement by the plaintiff.  See also Marobie-FL, Inc. v. Nat. Assn. of Fire Equip. Distributors, 983 F. Supp. 116 (N. D. Ill. 1997) (finding that ISP who immediately transmitted data over Internet but did not maintain a copy, nevertheless had made a copy, for purposes of copyright infringement determination, but refusing to impose liability for direct, contributory or vicarious liability, following Netcom).   

While these cases involved ISP liability for copyright infringement, another line of cases addressed tort liability for third-party conduct.  In Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995), the plaintiffs sued Prodigy (an interactive computer service similar to that operated by America Online (“AOL”)) for defamatory comments made by an unidentified party on one of Prodigy’s bulletin boards.  The court held Prodigy to the strict liability standard typically applied to original publishers of defamatory statements, rejecting Prodigy’s claims that it should be held only to the lower “knowledge” standard usually reserved for distributors.  The court reasoned that Prodigy acted more like an original publisher than a distributor, both because it advertised its practice of controlling content on its service and because it actively screened and edited messages posted on its bulletin boards. 

This case put online service providers in the awkward position of taking a “hands off” policy to avoid liability for illegal third-party content posted on their site until notified of an illegal posting, and then having to assess the validity of a complaint and respond promptly and reasonably to avoid liability. 

            Congress soon took responsibility for encouraging the growth of the Internet while at the same time trying to balance the publisher/distributor characterization problem by passing the Communications and Decency Act and the Digital Millennium Copyright Act -- two statutes that provide significant protection to online service providers for third-party publication torts and copyright infringement.    

I.          SECTION 230 OF THE COMMUNICATIONS AND DECENCY ACT 

            The Communications and Decency Act of 1996, 47 U.S.C. § 230, was Congress’ first effort to regulate liability for content on the Internet.  While a part of the CDA that regulated the publication of “indecent” or “patently offensive” speech attracted a great deal of attention, and was ultimately struck down by the Supreme Court in 1997, the law contained other provisions that went untouched by any legal challenge.   

The most important of these, for purposes of this article, are sections 230(c)(1) and (2) of the law. 

Section 230(c)(1) provides that interactive computer services are not the publisher or speaker of information provided by another content provider: 

(c) Protection for blocking and screening of offensive material 
 

 (1) Treatment of publisher or speaker 
 

No provider or user of an interactive computer service shall be treated as the publisher or speaker or any information provided by another information content provider. 

            Although sub-section (c)(1) provides that covered entities are not to be deemed publishers, the law does not stop there.  Section 230(c)(2) -- the so-called “Good Samaritan” section of the CDA -- provides even further protection, giving covered entities the kinds of editorial freedom traditionally reserved for publishers but without the additional burden of potential liability.  This section of the law removes the disincentives to self-regulation created by Stratton Oakmont, discussed above.  It provides as follows: 

(2)       Civil liability

 

No provider or user of an interactive computer service shall be liable on account of --
 

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

 

or

 

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
 

            Immunity under § 230 of the CDA requires three things: first, that the party seeking immunity be an interactive computer service; second, that the interactive computer service not be an information content provider, with respect to the disputed activity; and third, that the information at issue originate with a third-party user.

           While these sections of the CDA provide broad protection by appearing to put interactive computer services in the unique position of distributors with editorial discretion, cases decided under the statute and, indeed, the statute itself raise questions regarding the applicability of the law.  For example, what exactly is an “interactive computer service”?  What are the limits of protection provided by the CDA?  What can an interactive computer service do to be sure that it does not inadvertently cross the line and become an “information content provider”?  What affirmative actions must an interactive computer service undertake to ensure that it utilizes the protection provided by this statute?

            A.        What is an “Interactive Computer Service”? 

            The term “interactive computer service” is defined in § 230(f)(2) of the CDA: 

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

While at first it was uncertain whether the courts would extend the reach of § 230 beyond traditional Internet service providers (i.e. web sites, such as AOL, that enable access to the Internet), later cases have viewed the definition expansively.

            The CDA has, in fact, been used to protect AOL, more than any other company, from liability for third-party tortious conduct, and unsurprisingly most of the early cases applying the CDA involve AOL as a defendant.  See Zeran v. America Online, 958 F. Supp. 1124 (E. D. Va. 1997).  The first case to address application of the CDA to entities other than “traditional” ISPs did not arise until 2000.  In Stoner v. Ebay, Inc., 2000 WL 1705637 (Sup. Ct. San Francisco County, Cal., 2000), the court held, without discussion, that Ebay, an online auction site, was protected from liability under a California statute that prohibits the making of “bootleg” copies of sound recordings.  This case was unusual in that the conduct at issue (making bootleg copies of sound recordings) arguably is preempted by federal copyright law, in which case the action should not have been heard in state court in the first place, and the CDA  (which does not apply to violations involving intellectual property, as discussed below) should not have been applied.  Nevertheless, Stoner was the first case to establish the precedent that the CDA protected a web site that hosted third party content, but that was not an “access provider” in the tradition of companies like AOL.    

            Additional cases were quick to follow.  In 2001, a California Superior Court extended the protection of the CDA to the operator of an Internet discussion group, concluding that § 230 extended to users as well as operators of an interactive computer service.  Barrett v. Clark, 2001 WL 881259 (Cal. Sup. Ct., Alameda County, 2001).   

            In Schneider v. Amazon.com, Inc., 31 P.3d 37 (Wash. App. 2001), the court rejected the plaintiff’s argument that § 230 should not apply to protect web site hosts who do not enable access to the Internet.  Rather, the court explicitly concluded that the beneficiaries of the statute’s immunity include interactive web site operators such as Amazon.com.  Id. at 40. 

            In Patentwizard, Inc. v. Kinko's, Inc., 2001 WL 1148254 (D. S.D. 2001), the court held that Kinko's, which rents computers with Internet access, was protected under § 230.    

            Although only a relatively small number of cases have been decided under § 230 of the CDA, no case has limited the definition of an interactive computer service and, as noted above, several cases decided in 2000 and 2001 have construed the definition to include web site hosts.  Thus, based on the current state of the law, any web site that hosts third party content should (i) assume that it is covered by the CDA, (ii) take whatever measures the law requires to maintain that coverage, and (iii) assert the CDA as an affirmative defense if accused of responsibility for tort-based behavior engaged in by third-parties on the host’s interactive site. 

            B.        What are the Limits of Protection Provided by the CDA? 

            Not surprisingly, plaintiffs have been creative in attempting to circumvent the immunity provided by the CDA.   However, in every instance but one they have been unsuccessful. 

            In the first significant case decided after enactment of the CDA, Zeran, supra, the court rejected the plaintiff’s argument that an interactive computer service could be held liable for defamatory statements because it had actual knowledge of the defamatory statements upon which liability is predicated -- so-called “notice-based liability.”  Id. at 333.  Accord Stoner, supra (“the courts have recognized that imposing liability based on notice of content in the interactive computer service context would create an incentive for providers to restrict speech and abstain from self-regulation, thereby defeating the purposes of the section”). 

            In Morrison, supra, the court rejected the plaintiff’s attempt to avoid AOL’s claim of immunity under § 230 by arguing that she was a third party beneficiary to the subscriber agreement between the anonymous speaker of the defamation and AOL.    In Schneider, supra, the court not only rejected the plaintiff’s argument that a contract claim avoided the protection provided by § 230, but noted that nothing in the CDA limited the applicability of § 230 to tort claims.   Other courts have also held that § 230 extends to actions and claims for declaratory and injunctive relief.  See Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001).    

            The only context in which protection under § 230 has been denied thus far is in cases where the plaintiff has alleged trademark infringement.  In Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001), Gucci notified Mindspring (an ISP offering services similar to Prodigy and AOL) that one of its subscribers was using Mindspring to advertise jewelry that infringed Gucci’s trademarks.  After Mindspring took no action, Gucci filed suit on various federal and state trademark law theories.  Mindspring raised § 230 of the CDA as a defense in its motion to dismiss.   

            Although the court acknowledged that Mindspring, an ISP, was an “interactive computer service,” it noted that § 230(e)(2) of the CDA provides that “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”  Rejecting the defendant’s argument that the CDA did provide immunity, the court noted that if the CDA had been intended to provide immunity from intellectual property infringement, enactment of the DMCA (which provides ISPs with conditional protection for copyright infringement and is discussed below) would have been superfluous.  

A short opinion by a federal district court judge in the Eastern District of Michigan applied the same rationale to deny dismissal to a vendor of domain names sued by Ford Motor Company on trademark infringement grounds. Ford Motor Co. v. Greatdomains.com, Inc., 2001 WL 1176319 (E.D. Mich. Sept. 25, 2001). 

            Because intellectual property law violations were excluded from CDA immunity by § 230(e)(2), the courts may find themselves drawn, as these cases proceed on the merits, into the pre-CDA/Stratton Oakmont analysis: were the defendants “publishers” (who would be liable for infringement) or “distributors” (who, once having knowledge of an infringement, may be held liable for the infringement they do not take adequate steps to curtail it)?     

            The Gucci America and Greatdomains.com cases clearly leave interactive computer services companies potentially liable for contributory trademark infringement, but what about liability for copyright, patent and trademark infringement?  The scope of immunity for copyright infringement is determined by the DMCA, discussed below, and therefore clearly is excluded from CDA immunity.  Patent infringement, being an intellectual property right created by federal law, almost certainly will be viewed as being outside of the scope of the CDA, for the same reasons that trademark infringement was in Gucci America.     

Whether the CDA will provide protection for violations of the fourth major branch of intellectual property law, trade secret law, is uncertain.   Trade secret law has elements that lend themselves to both intellectual property analysis and tort analysis.  Until the courts have the opportunity to consider the issue, it remains to be seen whether the CDA will immunize interactive computer services that are used by third parties to violate trade secret rights.  In the meantime, interactive computer service providers should be alert to complaints that their system is being used to expose trade secrets and react quickly to complaints. 

C.        When is an  “Interactive Computer Service” also an “Information Content Provider?”

Section 230 of the CDA protects interactive computer services from liability for the acts of “information content providers.”  Section 230(f)(3) of the CDA provides that “the term ‘information content provider’ means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

There is, of course, no reason that an interactive computer service cannot also be an information content provider, and most interactive computer services do provide content.  For example, AOL, Yahoo.com and MSN.com permit subscribers to publish on their sites, but they also publish their own content.  Section 230 of the CDA provides immunity in the case of illegal postings by subscribers, but it does not provide immunity with respect to material for which the service is itself responsible.

Thus far, no plaintiff has successfully argued that companies such as Ebay or Amazon.com are responsible for the development of the offending information, thereby turning an interactive computer service into an information content provider.  

Ebay illustrates a fact situation in which the plaintiff was unable to overcome immunity by arguing that Ebay had moved itself into the position of an information provider by informing prospective purchasers that illegal recordings are available on its site.  The court found it dispositive that the information in dispute originated with third party sellers, not Ebay, and therefore it was the sellers, not Ebay, that were the information providers.  The court concluded that “neither aggressive advertising nor the imposition of a fee—including a fee based in part on the price at which an item is sold—transforms an interactive service provider into a seller responsible for items sold.”  Id.  Likewise, the fact that Ebay provides insurance for many auctioned items as well as escrow and payment services did not render Ebay a seller of the offending products. See also Ben Ezra Weinstein and Co. v. America Online, Inc., 206 F.3d 980 (10th Cir. 2000) (holding that AOL was not a content provider even though it communicated with provider of stock market information regarding errors in date); Blumenthal v. Drudge, 992 F. Supp. 44, 51-52) (D.D.C. 1998) (finding AOL immune from liability even though it paid Drudge). 

D.        Do Interactive Computer Services Need to Take Affirmative Actions to Receive Immunity under Section 230 of the CDA? 

      Section 230(d) of the CDA provides as follows: 

                  Obligations of interactive computer service -  

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.  Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

While the statute does not make immunity expressly contingent on disclosure of parental control protection based on failure to make such a disclosure, the cost of providing the disclosure is so minimal that it seems prudent for any entity that does business online and permits the publication of third party content to provide disclosure.  An example of a Model Minor Access Policy is provided as Appendix A.

CONCLUSION – THE CDA

Section 230 of the CDA has been interpreted to give interactive computer service providers the best of both worlds:  by being given the legal status of “distributors,” providers are immunized from tort claims based on information posted by third parties; at the same time they cannot be held liable for the exercise of functions traditionally performed by publishers, such as deciding whether to publish, withdraw, postpone or alter content, and they are free even from liability upon notice – notice of postings which indicate illegality does not defeat immunity, and interactive service providers can choose not to act in response to complaints from victims of alleged third party torts. 

None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability.  While the CDA keeps government regulation of the Internet to a minimum by providing immunity for tort liability on the part of companies that serve as intermediaries (at least in the area of tort liability), persons who engage in harmful online speech (such as defamation, stalking and harassment by means of a computer) have no special protection by reason of the fact that they use a computer to engage in these wrongs.  And, service providers must remain vigilant with respect to complaints involving copyright, trademark, patent and trade secret violations.     

II.                SECTION 512 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT

While § 230 of the CDA requires almost no affirmative steps by interactive computer services to be immunized against publisher-liability (apart from liability for intellectual property violations), Congress took a very different view of liability for copyright infringement, creating a complex system that establishes strict requirements for immunity from copyright liability based on third-party postings.

Title II of the DMCA created a new section 512 to the U.S. Copyright statute.  Section 512 is intended to give service providers greater certainty regarding copyright infringement risk by creating a safe harbor from liability.  Not every aspect of this complex law will be discussed here.  A more comprehensive treatment of the DMCA (including the anti-circumvention provisions in Title I) is provided in a paper entitled Copyright Protection and Management and Online Copyright Infringement Under the Digital Millennium Copyright Act, by Lee T. Gesmer and Jennifer Eilers, Esq., online at http://www.lgu.com/publications/softcopy/pdf/26.pdf.

            Section 512 of the Copyright Act limits liability in connection with four types of activities, as follows: 

1.                  Service providers who act essentially as a data conduit, transmitting material at the request of others.  The best example is the conventional ISP.  (§ 512(a)). 

2.                  Service providers who provide system caching as a temporary service.  System caching is typically an “appliance” technology used by ISPs and others to decrease Internet wait times by caching frequently demanded information locally.  This is a relatively narrow service provided by specialized communications companies.  (§ 512(b)). 

3.                  Service providers who permit third parties to store information.  This is the broadest category; it includes any web site that hosts third-party content. (§ 512(c)). 

4.                  Search engines.  Examples are Yahoo or Google. (§ 512(d)).

Because the vast majority of practitioners are likely to encounter demands for legal services from companies in the third category, we will discuss application of § 512(c) of the Copyright Act to that group in some detail.  The other categories – ISPs, caching services and search engines – are highly specialized, small in number, and are likely to have in-house counsel who are trained to deal with issues arising under the DMCA on a somewhat regular basis.  They are, however, discussed in the Gesmer and Eilers article referenced immediately above. 

A.        Section 512(c) – Conditions to Protection

            Section 512(c) creates an exemption from copyright liability “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...” 

Who qualifies for protection under this exemption?  Two provisions of § 512 provide the definition of a “service provider” for purposes of § 512(c). 

First, § 512(a) defines a “service provider” to mean:

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

The definition of a service provider under the remaining three exemptions includes the entities described in § 512(k)(1), but goes further to include as well:

a provider of online services or network access, or the operator of facilities therefore . . ..

Section 512(k)(1)(B).

Taken together, the definition of a service provider for purposes of 512(c) is very broad, and encompasses any entity that provides online services, whether a traditional ISP or simply a conventional web site that permits the posting of third party content.

Unlike the CDA, however, the DMCA establishes strict requirements and conditions in exchange for this immunity. 

A service provider must satisfy three conditions to take advantage of the exemption provided by § 512(c). 

   Knowledge.  First, the provider must lack knowledge that it is hosting infringing material.  The provider must lack “actual knowledge” that the material is infringing, it must not be aware of “facts and circumstances from which infringing activity is apparent” (known as the “red flag” test), and finally, once the red flag is waved, it must “act[] expeditiously to remove, or disable access to, the material.”  § 512(c)(1)(A)(i) – (iii).  

   Financial Benefit.  Second, the provider cannot receive a “financial benefit directly attributable to the infringing activity” where the provider “has the right and ability to control such activity.”  The legislative history suggests that set-up fees, monthly service charges, charges for connect time and the like should not be deemed “directly attributable” to infringing activity under this section.  § 512(c)(1)(B).  However, sales or commissions based on sales or licenses of the infringing work would constitute such a financial benefit and strip the provider of protection under this section.

   Notice and Take-Down.  Third, upon “notification” of claimed infringement, the provider must respond “expeditiously" to remove or disable access to the material.  § 512(c)(1)(C).  This is referred to as a “notice and take-down” procedure.  The details of the notification provisions of the law are discussed below.

B.        Notice and Take Down – A Closer Look

            The concept of notification, or “notice and take-down,"” is critical to § 512.  The statute provides a detailed procedure for such notification and requires a service provider seeking protection under the law to appoint a designated agent for purposes of notice and register the agent with the U.S. Copyright Office.

To be effective, notification of infringement must be written and contain the following:

  Signature.  The notification must be signed (either physically or electronically) by “a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”  § 512(c)(3)(A)(i).

   Identification of Material.  The copyrighted work claimed to have been infringed must be identified, and the complaining party must identify the material claimed to be infringing and provide the service provider with information reasonably sufficient for the provider to locate the material (e.g., the web site address).  § 512(c)(3)(A)(ii-iii).

   Contact Information.  The complaining party must provide the service provider with information such as its address, telephone number and e-mail address.  § 512(c)(3)(A)(iv).     

   Good Faith.  The complaining party must state its 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.”  § 512(c)(3)(A)(v).

   Authorization.  The notification must state, under penalties of perjury, that the complaining party is authorized to act on behalf of the owner.  § 512(c)(3)(A)(i). 

            Although these elements are a required part of the notification, the statute does not require perfection, except with respect to the requirement that notification be in writing.  “Substantial compliance” with the other requirements is adequate.  The statute describes the criteria for partial notification in detail.  § 512(c)(3)(B)(i-ii).         

            In addition to its "take down" provisions, the statute also describes a "put back" procedure that permits the service provider to restore the offending material upon certification of legality by the poster following notification to the poster.  § 512(g)(2)-(3).

            In order to rely on § 512, a service provider must designate an agent to receive notification under the law.  The provider must publicize its agent’s identity in two ways:

   First, the service provider must provide basic contact information to the U.S. Copyright Office.  § 512(c)(2).  The Register of Copyrights is required to maintain a directory of agents available for inspection.  This directory is available on the Internet at the following URL: http://www.loc.gov/copyright/onlinesp/list/index.html

The Copyright Office provides an “Amended Interim Designation of Agent” form at this URL: http://www.loc.gov/copyright/onlinesp/format.html

   Second, the service provider must provide the same information directly to the public, “through its service, including on its website in a location accessible to the public.”  § 512(c)(2).

A copy of a model form of agent designation is attached as Appendix B

C.        Cases Interpreting Section 512(c) of the DMCA 

            As a relatively recently enacted statute, there is little interpretive case law involving § 512(c) of the DMCA.   The cases that have been decided apply the “notice and take down” provision in the statute. 

            In ALS Scan, Inc. v. Remarq Communities, Inc., 2001 WL 98364 (4th Cir., Feb. 5, 2001), a court was presented for the first time with the issue of “imperfect notice” under the DMCA.  The plaintiff complained to an ISP that hosted an online newsgroup that published multiple copies the plaintiff’s copyrighted photographs.  Remarq obtained dismissal based on the fact that ALS had failed to provide a specific list of the infringing works, or identify the works with sufficient detail to enable the ISP to locate and disable them. 

            Reversing summary judgment previously entered in favor of the defendant, the Fourth Circuit held that notice was sufficient when it gave the ISP the ability to identify the multiple infringing copies in the form of a list of representative works that could easily be identified by the service provider.   

            In a second “imperfect notice” case, Ebay v. Hendrickson, 2001 WL 1078981 (C.D. Cal., Sept. 4, 2001), the owner of the 1976 documentary Manson complained to Ebay that Ebay was selling copies of the film in violation of the owner’s copyright.  Ebay requested proper notice under the DMCA, which the plaintiff refused to give, instead filing suit against Ebay.  In this case the court found that the plaintiff's pre-suit demand did not satisfy § 512(c)(3)’s “substantial compliance” requirement, since it lacked a statement attesting to the good faith and accuracy of the claim and inadequately identified the material claimed to be the subject of the infringing conduct.  The court also found that Ebay had not had, prior to filing of the lawsuit, actual or constructive knowledge of the infringing postings.  According, the plaintiff's claim for copyright infringement was dismissed.

CONCLUSION – THE DMCA

            The DMCA creates a safe harbor from copyright infringement, but entry to that harbor is narrow.  In contrast to the CDA, the provider must comply with detailed statutory regulations and be prepared to take immediate action in response to a legitimate complaint.  It is clear that application of Section 512 is in its infancy, and that readers (and attorneys advising clients on proper behavior under this statute) must be alert to case law developments that pertain to application of this law.  

APPENDIX A  

MODEL CDA MINOR ACCESS CLAUSE 

Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning more about these protections, information is available at http://www.worldvillage.com/family/parental.html as well as a number of other Internet sites that provide information on this form of protection. 

APPENDIX B

 MODEL DMCA COPYRIGHT ACT POLICY

1. Introduction. This policy is intended to implement the procedures described in Title II of the Digital Millennium Copyright Act, 17 U.S.C. Section 512 (“DMCA”) for the reporting of alleged copyright infringement. It is the policy of the [Company Name] (“Company”) to respect the legitimate rights of copyrights owners, their agents, and representatives. Users of any part of the Company computing system are required to respect the legal protections provided by applicable copyright law.

2. Designated Agent. The Company’s Designated Agent to receive notification of alleged infringement under the DMCA is [name, address, telephone and e-mail].  Upon receipt of notification of claimed infringement, Company will follow the procedures outlined herein and in the DCMA.

3. Complaint Notice Procedures for Copyright Owners. A notice of alleged copyright infringement to the Designated Agent must include the following:

(1) An electronic or physical signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(2) 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 notice, a representative list of such works at that site.

(3) 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 Company to locate the material.

(4) Information reasonably sufficient to permit the Company 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.

(5) 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.

(6) A statement that the information in the notice 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.

Failure to include all of the above information may result in a delay of the processing of the DCMA notification.

Notice and Takedown Procedure

It is expected that all users of any part of the Company computer system will comply with applicable copyright laws. However, if the Company is notified of claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing or to be the subject of infringing activity. Company will comply with the appropriate provisions of the DMCA in the event a counter notification is received by its Designated Agent.

Repeat Infringers

Under appropriate circumstances, the Company may, in its discretion, terminate authorization of users of its system or network who are repeat infringers.

Accommodation of Standard Technical Measures

It is Company policy to accommodate and not interfere with standard technical measures it determines are reasonable under the circumstances, i.e., technical measures that are used by copyright owners to identify or protect copyrighted works.


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