DMCA 1998

From: Torsten Bettinger <tnb[_at_]intellecprop.mpg.de>
Date: Wed, 01 Jul 1998 22:16:53 +0200

Hallo,

I have a question concerning sec. 512 subsection (d) of the proposal of Digital Millennium Copyright Act: Subsection (d) provides the following:

   INFORMATION LOCATION TOOLS- A service provider shall not be liable for    monetary relief, or except as provided in subsection (i) for injunctive    or other equitable relief, for infringement for the provider referring    or linking users to an online location containing infringing material or    activity by using information location tools, including a directory,    index, reference, pointer or hypertext link, if the provider--

(1) does not have actual knowledge that the material or activity is
   infringing or, in the absence of such actual knowledge, is not aware of    facts or circumstances from which infringing activity is apparent;

(2) does not receive a financial benefit directly attributable to the
   infringing activity, where the service provider has the right and    ability to control such activity; and

(3) responds expeditiously to remove or disable the reference or link
   upon notification of claimed infringement as described in subsection
(c)(3):
   

   Provided, That for the purposes of this paragraph, the element 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 such reference or    link.

As I read the judiciary report I understand that the provision applies to referring or linking users to an online location and is intended to limit liability of information tool providers such as online editors or catalogers or search mashines (e.g. Yahoo or Altavista). Does anyone know or have an opinion if the limitations on liability are also intended to apply to Internet users providing hyperlink directories on their homepages.

I suppose the answer depends on whether someone that has established a website on the WWW falls within the definition of a service provider in subsection (j)( "service provider means a provider of online services...").

Thanks
Torsten

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Torsten Bettinger Max-Planck-Institut fur auslandisches und internationales Patent-, Urheber und Wettbewerbsrecht

e-mail: tnb[_at_]intellecprop.mpg.de

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Received on Wed Jul 01 1998 - 20:20:43 GMT