Digital Law Online: Other Safe Harbor Requirements

In addition to the specific requirements of each safe harbor, there are some general requirements that a service provider must meet to qualify for any of the safe harbors. These are detailed in subsection (i).

First, a service provider must have

adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers. {FN118: 17 U.S.C. §512(i)(1)(A)}

As explained by the Senate Judiciary Committee:

First, the service provider is expected to adopt and reasonably implement a policy for the termination in appropriate circumstances of the accounts of subscribers of the provider’s service who are repeat online infringers of copyright. The Committee recognizes that there are different degrees of online copyright infringement, from the inadvertent to the noncommercial, to the willful and commercial. In addition, the Committee does not intend this provision to undermine the principles of [the protection of privacy of subsection (m)] or the knowledge standard of [notice-and-takedown] subsection (c) by suggesting that a provider must investigate possible infringements, monitor its service, or make difficult judgments as to whether conduct is or is not infringing. However, those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access. {FN119: Sen. Rep. No. 105-190 at 52}

By “subscribers,” the Committee intends to include account holders who are parties with a business relationship to the service provider that justifies treating them as subscribers, for the purposes of section 512, even if no formal subscription agreement exists. Examples include students who are granted access to a university’s system or network for digital online communications; employees who have access to their employer’s system or network; or household members with access to a consumer online service by virtue of a subscription agreement between the service provider and another member of that household. {FN120: Sen. Rep. No. 105-190 at 52 n. 24}

The privacy requirements of Subsection (m) are as follows:

Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on—

(1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i); or

(2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law. {FN121: 17 U.S.C. §512(m)}

The second requirement is that the service provider “accommodates and does not interfere with standard technical measures.” {FN122: 17 U.S.C. §512(i)(1)(B)} A standard technical measure

means technical measures that are used by copyright owners to identify or protect copyrighted works and—

(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;

(B) are available to any person on reasonable and nondiscriminatory terms; and

Congress was aware of the efforts toward the development of effective access control and rights management systems, and supported them legislatively in another portion of the DMCA. It would seem paradoxical to support technological measures for copyright infringement control in one section of the law while allowing service providers who interfere with the same technological measures to benefit from the safe harbor provisions.

The Committee believes that technology is likely to be the solution to many of the issues facing copyright owners and service providers in this digital age. For that reason, we have included [the subsection], which is intended to encourage appropriate technological solutions to protect copyrighted works. The Committee strongly urges all of the affected parties expeditiously to commence voluntary, interindustry discussions to agree upon and implement the best technological solutions available to achieve these goals.

[The subsection] is explicitly limited to “standard technical measures” that have been developed pursuant to a broad consensus of both copyright owners and service providers in an open, fair, voluntary, multi-industry standards process. The Committee anticipates that these provisions could be developed both in recognized open standards bodies or in ad hoc groups, as long as the process used is open, fair, voluntary, and multi-industry and the measures developed otherwise conform to the requirements of the definition of standard technical measures. A number of recognized open standards bodies have substantial experience with Internet issues. {FN123: Sen. Rep. No. 105-190 at 52}

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