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:[EMAIL PROTECTED] Pearisburg, VA
--> Too many people, too few sheep <--
