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Subject: (Fwd) Notes on the Online Copyright Infringement Liability Act
From: "Bernie Cosell" <bernie @ fantasyfarm . com>
Organization: Fantasy Farm Fibers
Date: Tue, 11 May 1999 15:39:17 -0400
To: list-managers @ GreatCircle . COM
Reply-to: bernie @ fantasyfarm . com

A few folk have already asked for this, so I apologize for irritating the 
rest of you, but I'll just send it here.  This was written in the context 
of an internal memo *to*an*ISP* about what OCILLA means and the 'we's 
refer to the ISP. And since IANAL this should not be considered "legal 
advice" under any state's definition of same, just a layman's 
interpretation of OCILLA.

The key thing, speaking as an ISP now, is that OCILLA goes beyond just 
"providing a defense" it actually will *remove* the ISP from the lawsuit-
loop.  That's, of course, a big deal: if the law just said "this could be 
OK in <these> circumstances", the ISP could still end up with big legal 
bills to go and makes its defense and it is one of those 'even if you 
win, you lose' situations... OCILLA [by my reading] goes a step farther, 
and so there's a real incentive to play by its rules (a stitch in time!).

 /Bernie\


------- Forwarded Message Follows -------
Date sent:      	Thu, 5 Nov 1998 19:23:56 -0500
Subject:        	Notes on the Online Copyright Infringement Liability Act

The OCILLA will, if we comply with its requirements, largely insulate
us from copyright suits brought as a result of alleged infringements
by our customers.  The requirements are pretty simple and fairly
obvious, so there shouldn't be any surprises.   Also, this is, of
course, all predicated that *WE* are not participants in any alleged
infringement that our servers are all acting normally, and also that
we comply with any court orders that come by.


1) Registering

We need to have a designated "Agent" who will deal with copyright 
matters.  The information the copyright office [CO] needs is:

    * Name of service provider [and all names under which it does
      business]
    * Name, street address [NOT PO box!] Phone # and email of the Agent
    * Signature of appropriate officer of the service provider.

This should be titled "Interim Designation of Agent to Receive 
Notification of Claimed Infringement" and mailed, with $20, to
       Copyright GC/I&R
       PO Box 70400
       Southwest Station
       Washington, DC 20024

In addition, the above info [less the signature, of course] should be 
available via our web page.


2) Dealing with an alleged infringement for material stored here 
*OR* information linked-to from our site

    When we become aware of potentially infringing material or receive
    notification of such, we must "act expeditiously to remove, or
    disable access to, the material".

3) Being notified

    By and large, we're not required to be policmen.  It is mostly the
    responsibility of the copyright holders to notify us of alleged
    infringements.  A "full" notification consists of:

        a) signature [electronic or physical] of copyright holder

        b) identification of copyright work claimed to have been
        infringed

        c) identification of material that is claimed to be infringing

        d) reasonable info to allow us to contact the complaining
        party

        e) a "good faith" statement that the complaining party that
        the (alleged) infringing material is not being used with the
        copyright holder's permission 

        f) a statement [under the usual "penalty of perjury"] that the
        statements are accurate.   

    [I include all this detail because "a notification ... that fails
    to comply substantially with the provisions [above] shall not be
    considered ... in determining whether a service provider has
    actual knowledge .... ].  That is, we don't have to "act
    expediously" until after we know [or have been informed] of the
    alleged violation and a defective notice does *NOT* constitute
    'knowing', and so we don't really have to do anything until the
    notification is cleaned up.. EXCEPT:

    If they tell us what's copyrighted, what's infringing *AND* the
    information on how to contact the complaining party, we are
    obligated to "promptly attempt[s] to contact the person making the
    notification ... to assist in the receipt of a notifcation that
    substantially complies with [the requirements above]."  What it
    means is that we don't have to *do* anything about the alleged
    infringement, but we -do- have to talk to the complainant to
    see if we can get the missing particulars of the notification
    sorted out [*THEN* we have to deal with the alleged infringement]

4) Liability for removed information/links

    It is best to block access (by renaming or 'mv'ing the file)
    rather than actually remove files [lest we cause someone some
    actual harm]. We will be pretty much immune from being sued by the
    folk whose materials we block access to if:

        a) We take "reasonable steps to promptly notify the
        subscriber".  I'd say both email -and- US mail.

        b) Upon receipt of a counter-notification (see below) we must 
        promptly forward the counter-notification onto the the original 
        complainant

        c) Replace the removed material and/or cease disabling access
        to it in not less than 10, nor more than 14, business days
        UNLESS we are informed by the original complainant that they
        are seeking a court order.  [translated: the complainant has
        ten days to fish or cut bait if challenged]

5) Counter-nofications

To file a counter-notification, our subscriber must provide a signed 
statement identifying the material they want restored and a statement 
that they believe that the original complaint is mistaken, the 
subscriber's name, address and phone number, and:

        " ... a statement that the subscriber consents to the
        jurisdiction of the Federal District Court for the judicial
        district in which the address is located..  and that the
        subscriber will accept service of process from the person who
        provided notification.. or an agent of such person"

I think that's about it.  There's a lot of other stuff in the Act that 
[IMO] won't affect us.  I have a copy of the Act and the CO interim 
regulations on my desk if you want to see the real thing.

  /Bernie\
-- 
Bernie Cosell                     Fantasy Farm Fibers
mailto:bernie @
 fantasyfarm .
 com     Pearisburg, VA
    -->  Too many people, too few sheep  <--


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