Talk:OCILLA details

I've seen this law listed both under this name and under the DMCA. I figured it was better to use this nomenclature here, but it may have been passed as part of some omnibus act (giving it both names). Alex756


 * There's some content about this law on Talk:Digital Millennium Copyright Act that could possibly be incorporated - or simply deleted if it's a duplicate of what's here... Martin


 * I moved the relevant text below. Martin

The 1998 Digital Millennium Copyright Act was established corollary to the Copyright Act in order to deal with the new realities of the Internet. Part of this legislation includes Title II, the &#8220;Online Copyright Infringement Liability Limitation Act,&#8221; with the primary provision being to place a limitation on the potential monetary damages that Online Service Providers and flow-through organizations or those operating under Open Content could face by allowing users access to copyrighted material placed on their site(s) by another party. Since the Act's implementation, the Courts have dealt with some of these issues that upheld the liability limitations established. Instead of being faced with a financial claim if the Website’s material infringes someone's copyright, under the law, neither an Online Service Provider nor a Website operator whose content is input from outside can be held liable provided they have complied with the rules established by the Digital Millennium Copyright Act. Those rules clearly and precisely include: The law also grants immunity for Online Service Providers and flow-through organizations from third party user claims, provided there has been a good-faith compliance with the statutory rules. Further, the Digital Millennium Copyright Act recognizes the massive volume potential through technology on the Internet and therefore the Act does not compel Online Service Providers and flow-through organizations to monitor material posted on their site. The requirement states that an Online Service Provider is only obliged to take action when it has actual knowledge of an infringement by facts brought to its attention, or by formal notice from the copyright owner. The Act does not impose any requirement for an Online Service Provider or any flow-through organizations to monitor or search out infringement. In order for an Online Service Provider or any flow-through organization to meet all the rules established under the Digital Millennium Copyright Act, any User posting a photo to an article has only to fulfill the certification requirement. Having complied, the Online Service Provider or flow-through organization does not have to "prove" anything to anyone until someone files a formal notice of copyright infringement. No one has the right to arbitrarily delete any photo placed in an article for copyright violation without providing proof of such violation or until the Online Service Provider or website owner has received a statutory notice from the copyright owner about an infringement. The Online Service Provider or any flow-through organization cannot be sued if someone posts a copyrighted photo unless the Online Service Provider or flow-through organization ignores a statutory notice of infringement from the copyright owner. Even then, no party may just claim copyright. In order to avoid false claims of ownership, they are obliged by law to provide the Online Service Provider or flow-through organization with certifications and proofs upon request. Copyright protection of written text is different than photos because of fair usage provisions as well as factual content such as birth/death dates, that cannot be claimed under copyright. The style of presentation is copyright, the facts as documented in government or public records, is not. However, when text is posted into an Online Service Provider or any flow-through organization that contains direct and substantive exact quotes then there is the same limited responsibility on the part of the Online Service Provider or any flow-through organization but it too requires the copyright owner to provide a certified notice of infringement in accordance with the rules of the Digital Millennium Copyright Act. The Courts have already ruled that "Open Content" sites cannot be held accountable for the actions of the users.
 * Providing a notice to Users concerning copyright laws and a notice that unauthorized use of copyrighted material is prohibited on the site;
 * establish a procedure to receive statutory notices from copyright owners about infringements;
 * comply with the removal requirements from a certified copyright infringement notice;
 * create a policy for termination of repeat offenders.

On June 24, 2003, User: joeharkins posted:

I have revised the discussion of the takedown, safe harbor and restoration provisions of 512 by citing and quoting specific language of the DMCA to justify the interpretation I have edited into my revision.

The primary problem I had with the original text was that it ignored the existence and significance of the word "expeditiously" in the Act. The text I removed even mis-stated the law by saying that an ISP first had to notify the alleged infringer and that if the infringer did not reply in ten days, then the material could be blocked. That's exactly bass-akwards from what the law says.

But the error was probably not malicious. The variety of small paragraphs in the law and their numbering system make it easy to confuse one provision with another. My edited text, referencing the correct paragraphs and quoting certain languge in the law, clarifies that *after* material has been blocked or removed in response to a conforming complaint, the law does allow ten days for the accused infringer to file a conforming counterclaim and request for restoration. But if such a counterclaim is not made, then the ISP is required to permanently block access to and/or remove the material and may do so without liability claims from an affected client.

Also, I corrected a minor grammatical error in Martin's text above that might cause a mis-reading of the safe harbor provision. Where he originally said, ". . . neither an Online Service Provider or a Website operator . . ." I corrected it to ". . . neither an Online Service Provider NOR a Website operator . . ."

Text removed from DMCA title II and pending integration here
The Online Copyright Infringement Liability Limitation Act (OCILLA), Title II of the DMCA legislation, creates a right in section 512 of the Copyright Act (17 U.S.C. sec. 512) that provides a safe harbor for a ISPs against copyright liability and additional penalities specific to the DMCA for copyright infringement under the federal law. The courts have generally upheld these provisions when they involve "512(c)- Information Residing on Systems or Networks At Direction of Users", such as a hosting service that rents disk space and network access. Courts have also, in some cases, ruled that open content sites (examples being a blog, a forum or even a Wikipedia) cannot be held responsible for the infringements by their members if they take timely advantage of the act's safe harbor provision. However, an open content site that willfully and outrageously flaunts the law by encouraging or condoning infringement and provides no mechanism for policing of copyright issues or dispute resolution as provided in the OCILLA may well be liable — in such a situation the courts may find even an open content site liable for copyright infringement.

The new section 512 provides for the appointment of a designated agent under the act through the U.S. Copyright Office with public notice on the ISP web site. Should an ISP maintain such a designated agent, a aggrieved copyright holder can make a written complaint to the ISP to remove or block access to any offending site found on an ISP's server. A complaint, to be compliant and therefore require recognition and action by the ISP, must provide specific details as described in the language of that law, that cleary identify the material and the complaint must also include an affadavit by the complainant, under oath, with criminal perjury penalities, as to the truth of claims in the complaint. The language of the DMCA 512(c)(1) specifies that upon getting a conforming complaint an ISP aquires safe harbor status (protection against civil and criminal penalites) only when the ISP, as stated in DMCA 512(c)(1)(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."

If the ISP does not expeditously remove the material it may become vulnerable to legal action for money damages and/or possible criminal action and/or injunctive relief. The Communications Decency Act (CDA) and prior case law had already established a fairly clear lack of liability for ISPs, so it is not likely that there would be actual liability, in spite of the loss of the guaranteed safe-harbor.

The key word in the safe-harbor exception language is "expeditously," a term that does not allow delay or alternatives. The law does not allow delay while the ISP contacts the site owner nor does it give authority for any other delay in blocking or removal. Given the ease with which DNS (Domain Name Server) blocking may be accomplished by a simple stroke, the definition of expeditiously is more likely in hours, not days.

An ISP's liability to the client whose web site has been affected by blocking or removal of alleged ingringing material is limited by 512(g)(1) but the law does require prompt notice from the ISP to the alleged infringing client that the action has taken place and give that party ten days to file a counterclaim denying the infringment. If the alleged infringer does not file a counterclaim under the procedure provided by the act, the ISP must permanently remove the infringing material. If the alleged infringer does file a timely and conforming counterclaim, the original complaiant must then launch a legal action for copyright infringment against the alleged infringer or, that action lacking, the ISP may restore access to the material.JamesDay 09:25, 15 Sep 2003 (UTC)

Notes on Expeditious
The meaning of expeditious in the context of this law has not yet been determined. In general, it depends on the circumstances, allowing more time than "immediate" but not undue delay. Taking more than 24 hours could well be viewed as undue delay. Taking action within the hour to tell a customer that a takedown notice has been received and they must immediately remove the content and confirm removal, giving them six to twelve hours to comply, otherwise the content or their internet connection will be taken down, may be considered reasonable. It's useful to remember that the CDA still protects the OSP from liability for content provided by third parties, so even if a removal is found not to be expeditious, there is still room to balance the desire to assist with protection of intellectual property rights and the desire to preserve good customer relations. (Source: discussion of the meaning of expeditious in this context with a law professor...)

Please sign your posts on all talk pages. This is just one opinion. It is not the only opinion in this area. No court has yet to rule on many of these issues under this law as not many people are bringing suits to challenge the law, i.e. it seems to work very well and OSPs seem to comply with it to the satisfaction of those alleging infringement. &#8212; Alex756 02:15, 11 Oct 2003 (UTC)