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Safe Sailing

The Safe Harbor provisions are found in section 512 of the DMCA, and are also collectively referred to as OCILLA (Online Copyright Infringement Liablity Limitation Act). The section is basically a codification of a seminal case involving the Church of Scientology trying to hold and Internet Service Provider liable for postings made by users that included copyrighted Scientology materials.

The Safe Harbor provisions were designed to prevent the DMCA in general from strangulating the Internet in its infancy. If every Online Service Provider (OSP) was liable for anything any user did without its knowledge, the result would be very limited access to the Internet. Consequently, if an OSP meets the eligibility requirements, and falls with one of the four Safe Harbors, then that OSP will be immune from liability.

The four Safe Harbors are outlined below. Generally speaking we think of the fourth Safe Harbor for Information Location Tools as applying to search engines such as Google. However, depending what product or service you are referring to, Google can qualify for any of the four Safe Harbors (WiFi services may qualify for Transitory Digitial Communications; Cached feature of Web Search may qualify for System Caching; Google Video and YouTube may qualify for Information Residing on Systems or Networks at Direction of Users; and Web, Images and News search may qualify for Information Location Tools).

Here are the preconditions for availing yourself of the Safe Harbors:

512(i) - Conditions for Eligibility

  • (1) No liability if:
    • (A) OSP has reasonably implemented a repeat offender policy
    • (2) OSP does not interfere with technical measures

Here are the elements of the 4 Safe Harbors:

512(a) - Transitory Digital Network CommunicationsPhone Companies

  • No liability if:
    • (1) OSP is not Poster
    • (2) Automatic transmission; no selection of Work by OSP
    • (3) Automatic response; no selection of User by OSP
    • (4) Copy retained only for transmission period
    • (5) No modification of Work by OSP

512(b) - System Caching

Phone Companies
  • (1) No liability if:
    • (A) OSP is not Poster
    • (B) Work is transmitted to User through OSP at direction of User
    • (C) Storage of Work is an automatic technical process
  • (2) As long as:
    • (A) Content of Work is not modified
    • (B) OSP abides by generally accepted industry standard data communications protocol
    • (C) OSP doesn’t interfere with Poster technology, as long as:
      • (i) does not significantly impair OSP performance
      • (ii) consistent with generally accepted industry standard communications protocols
      • (iii) no additional information extracted by OSP for Poster
    • (D) OSP passes through access restrictions
    • (E) if Poster not authorized to post, OSP expeditiously removes Work, if
      • (i) Work has previously been removed from originating source, or court has ordered it so removed
      • (ii) notification indicates that Work has previously been removed from originating source, or court has ordered it so removed

512(c) - Information Residing on Systems or Networks at Direction of UsersPhone Companies

  • (1) No liability if OSP:
    • (A)
      • (i) does not have actual knowledge that Work or activity is infringing;
      • (ii) is not aware of circumstances from which infringing activity is apparent; or
      • (iii) upon obtaining knowledge or awareness, OSP expeditiously removes Work
  • (2) Designate an Agent, including
    • (A) name, address, phone, email
    • (B) other info Register may deem appropriate
  • (3) Take down notice
    • (A) must be sent to Agent, and include:
      • (i) authorized signature
      • (ii) id of the Work claimed to be infringed, or representative list if there are multiple works
      • (iii) id of the infringing Work and sufficient information to enable OSP to locate Work
      • (iv) sufficient information to enable OSP to contact the Poster
      • (v) good faith statement that Work is infringing
      • (vi) statement that notification is accurate
    • (B)
      • (i) Defective notice will not serve to convey knowledge or awareness to OSP
      • (ii) if notice substantially complies with id requirements, OSP must assist in compliance

512(d) - Information Location Tools

Phone Companies
  • No liability if OSP:
  • (1)
    • (A) does not have actual knowledge that Work or activity is infringing;
    • (B) is not aware of circumstances from which infringing activity is apparent; or
    • (C) upon obtaining knowledge or awareness, OSP expeditiously removes Work
  • (2) If OSP has right and ability to control activity, cannot obtain financial benefit directly attributable to infringing activity; and
  • (3) Take down notice shall id link, and sufficient information to enable OSP to locate link.