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Section 512 report – Notice-and-Takedown Process

OSPs seeking protection under the safe harbors in sections 512(b), (c), or (d), must, in addition to the section 512(i) requirements, maintain a compliant notice-and-takedown process by responding expeditiously to remove or disable access to material claimed to be infringing upon receipt of proper notice from a copyright owner or the owner’s authorized agent.

The OSP must in good faith remove, or disable access to, the allegedly infringing content and take reasonable steps to promptly notify the user. An OSP seeking to avail itself of the section 512(c) safe harbor for user-posted content, section 512(b) for caching activities, or section 512(d) for search activities is further required to designate an agent to receive notifications of claimed infringement and provide contact information for the agent on its website and to the Copyright Office, which, in turn, is to maintain a public directory of such agents.

Although sections 512(b) and (d) do not themselves expressly require OSPs to designate an agent to receive notifications of infringement, they both incorporate the notice provisions of section 512(c)(3), which require that notices be sent to ‘‘the designated agent of the service provider.’’ The statutory scheme thus indicates that OSPs operating under section 512(b) and/or (d) would also have to designate agents to receive takedown notices.

a) Takedown Notice

The statute mandates that a copyright owner’s takedown notice must include “substantially the following”:

(i) the signature of the copyright owner or an authorized agent (i.e., the “complaining party”);

(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple works are on a single site, “a representative list of such works”;

(iii) identification of the infringing material or activity (or the reference or link to such material) and “information reasonably sufficient” to permit the OSP to locate the material (or the reference or link);

(iv) contact information for the complaining party;

(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”; and

(vi) a statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.

Under section 512(f), “any person who knowingly materially misrepresents… that material or activity is infringing” in a takedown notice can be held liable for any damages, including costs and attorneys’ fees, incurred by an alleged infringer who is injured by the misrepresentation.

b) Knowledge and Financial Benefit

In addition to responding to takedown notices, OSPs that seek protection under the section 512(c) and (d) safe harbors must also act expeditiously to remove or disable access to material when they have “actual knowledge” of infringement or, in the absence of such actual knowledge, when they have “awareness of facts or circumstances from which infringing activity is apparent” – the “awareness” standard often referred to as “red flag” knowledge.

But, while OSPs are not free to ignore infringement of which they have actual or red flag knowledge, section 512 at the same time provides that an online entity has no duty to “monitor its service or affirmatively seek facts indicating infringing activity, except to the extent consistent with a standard technical measure.”

Finally, to qualify for the section 512(c) and (d) safe harbors, an OSP must not “receive a financial benefit directly attributable to the infringing activity, in a case in which the OSP has the right and ability to control such activity.” The statutory financial benefit/right to control test does not incorporate a knowledge element.

In addition to the general limitations on infringement liability, the statute outlines specific protections for OSPs that remove material in response to takedown notices. Under section 512, an OSP is not liable for “any claim based on the service provider’s good faith disabling of access to, or removal of material claimed to be infringing or based on facts or circumstances from which infringing activity is apparent” – even material not ultimately found to be infringing.

This protection from liability does not apply to material removed pursuant to a takedown notice unless the provider (i) takes reasonable steps to promptly notify the user who posted the material that it has been removed and (ii) complies, as applicable, with the statutory counter-notification process.

Counter-Notification Section

512(g) allows a user whose content has been removed in response to a takedown notice to submit a counter-notification to an OSP’s designated agent requesting that the content be reposted, if the user believes that the content was improperly removed, such as due to the OSP’s error or content posted pursuant to a valid license or another copyright exception or limitation. The counter notice, like the initial notice, must be in writing and must include:

(i) the signature of the subscriber (i.e., the counter-notifying party);

(ii) identification of the material that was removed or to which access was disabled, as well as the location where it previously appeared;

(iii) a statement under penalty of perjury that the subscriber has a “good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and

(iv) the subscriber’s contact information, as well as a statement that the subscriber consents to the jurisdiction of the federal district court for the relevant judicial district and agrees to accept service of process from the party who provided the takedown notice (or that party’s agent).

Section 512(f) also applies to counter-notifications, providing that any person who “knowingly materially misrepresents” that “material or activity was removed or disabled by mistake or misidentification” may be held liable for monetary damages, including costs and attorneys’ fees.

To preserve its safe harbor immunity, an OSP that receives a counter-notice must then repost the content in question no fewer than 10 but no more than 14 business days after receiving the counter notification, unless the OSP first receives notice from the party who provided the takedown notice that a judicial action has been filed “seeking… to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.”

An OSP is not liable for reposting infringing content upon receipt of a valid counter notification, in the absence of such a notice. If the rightsholder files a lawsuit, the content is not replaced and the user must mount a legal defense for their use.

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