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EDUCAUSE Statement on To: EDUCAUSE Members
I. Copyright Office Interim Regulations
Title II of the recently enacted Digital Millennium Copyright Act includes infringement liability exemptions for online service providers. The Copyright Office of the Library of Congress on November 3 issued Interim Regulations - effective immediately -- that require such service providers to take certain steps before they can avail themselves of liability exemptions contained in Title II. (Interim Regulations available at: http://www.aop.org/legis/interim.html; Copyright Office notice at: http://lcweb.loc.gov/copyright/onlinesp/; short DMCA evaluation available at: http://www.dfc.org/issues/wipo/JB-Index/JB-Memo/jb-memo.html). In brief, the Interim Regulations establish temporary processes for online service providers to designate an agent to receive notifications of claimed infringement. Contact information for this agent (1) must be provided to the Copyright Office and (2) must be available through the service provider. s publicly accessible website. (This agent approach apparently is a reaction by copyright holders and the Copyright Office to perceived problems with ISP cooperation after notification of potential infringement on their system. See http://www.news.com/News/Item/Textonly/0,25,28357,00.html?st.ne.ni.pfv) More detailed instructions, including a link to a registration form produced by the Copyright Office, are included below. II. Entities eligible for protection The definition of online "service provider" in the context of OSP copyright liability exemptions is extremely broad: "A provider of online services or network access, or the operator of facilities therefor". The definition goes on to include "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." (new subsection 17 U.S.C. 512(k)(1)(A)-(B)). This is not the same analysis used by the FCC, and this is not an FCC proceeding. The FCC analysis of ISPs is long and tortured, and is influenced by a historical separation between enhanced services providers and telecommunications carriers, and the corresponding dichotomy in the 1996 Act between information services providers and telecommunications carriers. (See: Report to Congress Universal Service, April 10, 1998 http://www.fcc.gov/Bureaus/Common_Carrier/Reports/fcc98067.html) As near as we are able to tell, the definition above and the submission of the Agent Designation form to the Copyright Office will not affect proceedings at the FCC nor directly affect an entity. s characterization as a result of such proceedings. The precise answer to whether a university entity is an ISP depends on the regulatory context. The above definition applies in the context of copyright liability exemptions. Given the complexity and novelty in this area, new regulations pertaining to ISPs may employ the FCC analysis, may mirror the above broad catch-all definition, or may provide a new definition for that particular context. III. What to do We recommend that our members limit their liability as service providers by taking the steps set forth in the Interim Regulations and summarized below. Please note that the Interim Regulations produced by the Copyright Office are temporary. The Office will publish a notice of proposed rulemaking "within the next several weeks" seeking comments on more comprehensive final regulations governing the designation of agents to receive notification of claimed infringement. EDUCAUSE will follow this closely and may comment on behalf of its members. Because the Interim Regulations are only temporary, the submission of agent contact information to the Copyright Office is only effective until the date of enactment of the final regulations. The process may change; you may need to resubmit information in a few weeks, and you probably will be required to pay another (likely increased) fee. According to the Interim Regulations, entities that fall within the above definition of "service provider" and that wish to take advantage of liability exemptions contained the DMCA from now until the promulgation of final rules concerning agent designation should do the following:
Please also note that this is only a first step in the implementation of the Digital Millennium Copyright Act. EDUCAUSE is working closely with other organizations and is collecting further information regarding the operational and legal aspects of notice-and-takedown. Below is one such reference. We will make other materials available on our site in the near future.
Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers
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