Internet Book Piracy
Page 17
A. the material is made available online by a person other than the service provider;
B. the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and
C. the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met.
2. CONDITIONS. — The conditions referred to in paragraph (1) are that —
A. the material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A);
B. the service provider described in paragraph (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person described in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to which this subsection applies;
C. the service provider does not interfere with the ability of technology associated with the material to return to the person described in paragraph (1)(A) the information that would have been available to that person if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that technology -
i. does not significantly interfere with the performance of the provider’s system or network or with the intermediate storage of the material;
ii. is consistent with generally accepted industry standard communications protocols; and
iii. does not extract information from the provider’s system or network other than the information that would have been available to the person described in paragraph (1)(A) if the subsequent users had gained access to the material directly from that person;
D. if the person described in paragraph (1)(A) has in effect a condition that a person must meet prior to having access to the material, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits access to the stored material in significant part only to users of its system or network that have met those conditions and only in accordance with those conditions; and
E. if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3), except that this subparagraph applies only if —
i. the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and
ii. the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.
c. INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT DIRECTION OF USERS. —
1. IN GENERAL. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -
A. i. does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
ii. in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
iii. upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
B. does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
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 or to be the subject of infringing activity.
2. DESIGNATED AGENT. — The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
A. the name, address, phone number, and electronic mail address of the agent.
B. other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
CHAPTER 15
Notifying the Infringers and Website Hosts
ONCE YOU IDENTIFY ANY COPYRIGHT infringements of your work along with the service providers making it available, the next step is notifying the site owners and service providers to take down this material or prevent access to it. The infringers must then respond immediately to take down your copyrighted material. While the service provider must do so to avoid liability, the person uploading the material and the company offering the infringed-upon material are still liable for any damages and profits. While you can do this yourself, a piracy protection service can draw on its own lists and algorithms to find the pirated copy and send out the takedown notices to the site owners and service providers on your behalf.
These service providers are like enablers, accomplices, or associates who are giving the actual infringers a platform to use in giving away or making a profit from copyrighted material. While they provide a channel for distributing the work, they may not be aware that the copyrighted work has been uploaded without permission, so they have an opportunity to escape liability if they have properly registered an agent with the Copyright Office to be in a public directory and receive notifications, and they promptly remove or deny access to this copyrighted material. However, if they don’t do either of these actions, they can then become liable for damages and profits, just like the company offering the infringed-upon material. Accordingly, it is important to monitor their response to a takedown request; if they don’t respond to quickly take down the material or deny access to it, they can be included in any litigation or criminal prosecution, along with the primary offender, since they are now knowingly aiding and abetting the act of piracy.
According to the copyright law, a notice to be effective must be in writing and include these key elements:
• a physical or electronic signature of the victim of the infringement,
• an identification of the copyrighted work or a representative list of such works and a request to remove or disable access to it,
• contact information so the service provider can contact you, such as an address, phone number, and email,
• if you are acting on behalf of the copyright owner, a statement that you have a good faith belief that the material is not authoriz
ed by the copyright owner and that you are authorized to act on behalf of the owner
Then, the service provider has to reply promptly to such a notification to avoid liability. More specifically, as provided for in Title 17, Chapter 512, (c)(3)(a and b) of the US Copyright Law (http://www.copyright.gov/title17/92chap5.html), the notification and response requirement is as follows. Again, you might refer to this code in your initial letter to such a service provider, and if they don’t immediately respond to take down or remove access, they will become liable, and you can use this information in seeking a settlement from them, or in including them in any litigation to claim damages and/or profits.
3. ELEMENTS OF NOTIFICATION. —
A. To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially 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.
B. i. Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
ii. In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
CHAPTER 16
Copyright Laws Affecting References Sources and Educational Institutions
INDIVIDUALS OR COMPANIES THAT PUT together reference tools—such as a directory, index, pointer, or list of hyperlinks to the locations which have infringing materials—have certain exemptions from liability. So do public or private nonprofit institutions of higher education, which are service providers, and their faculty members and students have certain exemptions from liability. However, these individuals, companies, and institutions have to be unaware of the infringing content and act to remove or disable any infringing content to remain free of liability. If they don’t, they can be held responsible for damages and profits, like any knowing infringer.
These details are spelled out in Title 17, Chapter 512, (d) and (e). More specifically, a service provider who refers or links users to an online location containing infringing material or activity—such as through a directory, index, reference, pointer, hypertext link, or other information tools—must not have actual knowledge that the material or activity is infringing. Then, once made aware of this infringement, he or she must quickly remove or disable any access to that material. Additionally, the service provider cannot receive a financial benefit directly due to that infringing activity or the ability to control that activity, lest he or she become liable like the original infringer.
In the case of an educational institution, the provisions affecting other service providers about being unaware of any infringement and removing or disabling access to any infringing material apply. The institution also has to comply with and promote compliance with the copyright laws to its faculty and graduate students. These faculty members and students are considered separate from the institution, and they cannot knowingly engage in any infringing activities themselves, such as by requiring, recommending, or providing online access to infringing materials. To avoid liability for the actions of its faculty and graduate students, the institution has to act promptly to stop the infringement, since it can become liable if it receives more than two notifications over a three-year period of an infringement by a faculty member or graduate student.
More specifically, as provided for in Title 17, Chapter 512, (d) and (e) of the US Copyright Law (http://www.copyright.gov/title17/92chap5.html), the special provisions covering service providers offering referrals or links and educational institutions and their faculty members or graduate students are the following. Again, you might refer to this code in your initial letter to such a service provider, educational institution, faculty member, or graduate student. Then, if they don’t immediately respond to take down or remove access, they become liable, and you can use this information in seeking a settlement from them, or in participating in litigation against them to claim damages and/or profits.
d. INFORMATION LOCATION TOOLS. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider —
1. A. does not have actual knowledge that the material or activity is infringing;
B. in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
C. upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
2. does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
3. upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.
e. LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL INSTITUTIONS. — (1) When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) such faculty member’s or graduate student’s knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if —
A. such faculty member’s or graduate student’s infringing activities do not involve the provision of online access
to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student;
B. the institution has not, within the preceding 3-year period, received more than 2 notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and
C. the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright.
2. For the purposes of this subsection, the limitations on injunctive relief contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall apply.
CHAPTER 17
Making Accurate Takedown Requests and Dealing with Counterclaims
THE VAST MAJORITY OF PIRACY victims can probably ignore the clauses in the copyright law that deal with making misrepresentations in an infringement claim or what to do if the infringer fights back and claims no infringement. Generally, the Internet listing itself provides a clear-cut case of piracy and in most cases, the infringer and service provider will either honor or ignore your request to stop the infringement by removing or denying access to the material. But just in case, you should know about the infringer’s or service provider’s options to counter your claim.
These situations are covered in Title 17, Chapter 5, sections (f) and (g) of the Copyright Code. Section (f) deals with misrepresentation; section (g) deals with replacing removed or disabled material should the infringer claim a mistake was made in claiming an infringement.