The Online Copyright Infringement Liability Limitation Act (OCILLA) is a United States federal law that creates a conditional 'safe harbor' for online service providers (OSP) (a group which includes internet service providers (ISP) and other Internet intermediaries) by shielding them for their own acts of direct copyright infringement (when they make unauthorized copies) as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty (WCT) directive to "maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information" when updating copyright norms for the digital age. In the context of Internet intermediaries, OCILLA attempts to strike this balance by immunizing OSP's for copyright liability stemming from their own acts of direct copyright infringement (as primary infringers of copyright), as well as from the acts of their users (as secondary infringers of copyright), provided that OSP's comply with two general requirements protecting the rights of authors.

1. The OSP must "adopt and reasonably implement a policy" of addressing and terminating accounts of users who are found to be "repeat infringers."
2. The OSP must accommodate and not interfere with "standard technical measures." "Standard technical measures" are defined as measures that copyright owners use to identify or protect copyrighted works that have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair and voluntary multi-industry process, and are available to anyone on reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers or their system networks.

OSPs may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting, caching, storing, or linking to infringing material. An OSP who complies with the requirements for a given safe harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.

In addition to the two general requirements listed above, all four safe harbors impose additional requirements for immunity. The safe harbor for storage of infringing material under § 512(c) is the most commonly encountered because it immunizes OSPs such as YouTube that might inadvertently host infringing material uploaded by users.

Taken as a whole, OCILLA's passage represented a victory for telecom and Internet related industry groups over powerful copyright interests who had wanted service providers to be held strictly liable for the acts of their users. However, copyright owners also obtained concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires OSP's seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, and to disclose information about those users who are allegedly infringers.

Section 512(c) applies to OSPs that store infringing material. In addition to the two general requirements that OSPs comply with standard technical measures and remove repeat infringers, § 512(c) also requires that the OSP: 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.

An OSP must "not receive a financial benefit directly attributable to the infringing activity" to qualify for § 512(c) protection. However, it is not always easy to determine what qualifies as a direct financial benefit under the statute.

One example of an OSP that did receive a direct financial benefit from infringing activity was Napster. In A&M Records, Inc. v. Napster, Inc., the court held that copyrighted material on Napster's system created a "draw" for customers which resulted in a direct financial benefit because Napster's future revenue was directly dependent on increases in user-base. Conversely, in Ellison v. Robertson, the court held that AOL did not receive a direct financial benefit when a user stored infringing material on its server because the copyrighted work did not "draw" new customers. AOL neither "attracted [nor] retained…[nor] lost…subscriptions" as a result of the infringing material.

To qualify for the § 512(c) safe harbor, the OSP must not have actual knowledge that it is hosting infringing material or be aware of facts or circumstances from which infringing activity is apparent. It is clear from the statute and legislative history that an OSP has no duty to monitor its service or affirmatively seek infringing material on its system. However, the statute describes two ways in which an OSP can be put on notice of infringing material on its system: 1) notice from the copyright owner, known as notice and take down, and 2) the existence of "red flags."

This is advantageous for OSPs because OCILLA's clear process allows them to avoid making decisions about whether or not material is actually infringing. Such decisions can be complex both because it is difficult to determine whether the copyright has expired on a material without access to complete information such as publication date, and because even copyrighted material can be used in some cases under the doctrine of fair use, the applicability of which is difficult to evaluate.

Instead of making a complex legal determination, OCILLA allows OSPs to avoid liability provided they comply with the terms of the statute, regardless of the validity of any claim of infringement.

The first way an OSP can be put on notice is through the copyright holder's written notification of claimed infringement to the OSP's designated agent. This must include 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.

See 512(a) and (h) below if the information is not stored on the system of the OSP but is instead on a system connected to the Internet through it, like a home or business computer connected to the Internet. Legal liability may result if access to material is disabled or identity disclosed in this case.

If a notice which substantially complies with these requirements is received the OSP must expeditiously remove or disable access to the allegedly infringing material. So long as the notice substantially complies with clauses (ii), (iii), and (iv) the OSP must seek clarification of any unclear aspects.

In Perfect 10, Inc. v. CCBill LLC, the Ninth Circuit held that the properly constructed notice must exist in one communication. A copyright owner cannot "cobble together adequate notice from separately defective notices" because that would unduly burden the OSP.

After the notice has been complied with the OSP must take reasonable steps to promptly notify the alleged infringer of the action. Note that the OSP is not prohibited from doing so in advance, only required to do so afterward. If there is a counter notification from the alleged infringer, the OSP must respond appropriately to it.

If the OSP complies with this and the counter notification procedures, it is safe from legal liability to its own customer as a result of taking down the material.

There is a common practice of providing a link to legal notices at the bottom of the main web page of a site. It may be prudent, though it is not required by the provisions of section 512 of the copyright law, to include the designated agent information on the page the legal link goes to, in addition to any other places where it is available. As long as the site gives reasonable notice that there is a method of compliance, that should be sufficient. Once again the courts have not ruled on the technicalities of posting of these notices.

The second way that an OSP can be put on notice that its system contains infringing material, for purposes of section 512(d), is referred to the "red flag" test. The "red flag" test stems from the language in the statute that requires that an OSP not be "aware of facts or circumstances from which infringing activity is apparent."

The "red flag" test contains both a subjective and an objective element. Subjectively, the OSP must have knowledge that the material resides on its system. Objectively, the "infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances."

Here's an example of how the takedown procedures would work:

1. Alice puts a video with a copy of Bob's song on her YouTube channel.
2. Bob, searching the Internet, finds Alice's video containing a copy of his song.
3. Charlie, Bob's lawyer, sends a letter to YouTube's designated agent (registered with the Copyright Office) including:
   1. contact information
   2. the name of the song that was copied
   3. the URL of the copied song
   4. a statement that he 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.
   5. a statement that the information in the notification is accurate
   6. a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
   7. his signature
4. YouTube takes the video down.
5. YouTube tells Alice that they have taken the video down and that her channel has a copyright strike.
6. Alice now has the option of sending a counter-notice to YouTube, if she feels the video was taken down unfairly. The notice includes
   1. contact information
   2. identification of the removed video
   3. a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
   4. a statement consenting to the jurisdiction of Alice's local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which YouTube is found.
   5. her signature
7. If Alice does file a valid counter-notice, YouTube notifies Bob, then waits 10-14 business days for a lawsuit to be filed by Bob.
8. If Bob does not file a lawsuit, then YouTube may put the material back up.

1. https://www.jstor.org/stable/43917631

Vol. 30, No. 1 (Spring 2015), pp. 305-384 (80 pages)

Published by: University of California, Berkeley, School of Law

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