85
Th
e
Di
g
ita
l
Mi
lle
nnium C
o
p
yr
i
g
ht A
c
t
of
1998
C
o
p
yr
i
g
ht O
ff
i
ce
Summa
ry
D
ece
mb
er
1998
Pa
ge
9
Each limitation entails a complete bar on monetary damages, and restricts the
availability of injunctive relief in various respects. (Section 512(j)). Each limitation
relates to a separate and distinct function, and a determination of whether a service
provider qualifies for one of the limitations does not bear upon a determination of
whether the provider qualifies for any of the other three. (Section 512(n)).
The failure of a service provider to qualify for any of the limitations in section
512 does not necessarily make it liable for copyright infringement. The copyright
owner must still demonstrate that the provider has infringed, and the provider may still
avail itself of any of the defenses, such as fair use, that are available to copyright
defendants generally. (Section 512(l)).
In addition to limiting the liability of service providers, Title II establishes a
procedure by which a copyright owner can obtain a subpoena from a federal court
ordering a service provider to disclose the identity of a subscriber who is allegedly
engaging in infringing activities. (Section 512(h)).
Section 512 also contains a provision to ensure that service providers are not
placed in the position of choosing between limitations on liability on the one hand and
preserving the privacy of their subscribers, on the other. Subsection (m) explicitly
states that nothing in section 512 requires a service provider to monitor its service or
access material in violation of law (such as the Electronic Communications Privacy Act)
in order to be eligible for any of the liability limitations.
Eligibility fo
r
Limitations Gene
r
ally
A party seeking the benefit of the limitations on liability in Title II must qualify
as a “service provider.” For purposes of the first limitation, relating to transitory
communications, “service provider” is defined in section 512(k)(1)(A) as “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.” For
purposes of the other three limitations, “service provider” is more broadly defined in
section 512(k)(l)(B) as “a provider of online services or network access, or the operator
of facilities therefor.”
In addition, to be eligible for any of the limitations, a service provider must
meet two overall conditions
:
(1) it must adopt and reasonably implement a policy of
terminating in appropriate circumstances the accounts of subscribers who are repeat
infringers
;
and (2) it must accommodate and not interfere with “standard technical
measures.” (Section 512(i)). “Standard technical measures” are defined as measures
that copyright owners use to identify or protect copyrighted works, that have been
developed pursuant to a broad consensus of copyright owners and service providers
in an open, fair and voluntary multi-industry process, are available to anyone on
