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In addition, the provider is protected from any liability to any person for claims based
on its having taken down the material. (Section 512(g)(1)).
In order to protect against the possibility of erroneous or fraudulent
notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the
subscriber the opportunity to respond to the notice and takedown by filing a counter
notification. In order to qualify for the protection against liability for taking down
material, the service provider must promptly notify the subscriber that it has removed
or disabled access to the material. If the subscriber serves a counter notification
complying with statutory requirements, including a statement under penalty of perjury
that the material was removed or disabled through mistake or misidentification, then
unless the copyright owner files an action seeking a court order against the subscriber,
the service provider must put the material back up within 10-14 business days after
receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either a
notice or a counter notice. Any person who knowingly materially misrepresents that
material is infringing, or that it was removed or blocked through mistake or misidentification,
is liable for any resulting damages (including costs and attorneys’ fees) incurred
by the alleged infringer, the copyright owner or its licensee, or the service provider.
(Section 512(f)).
Limitation for Information Location Tools
Section 512(d) relates to hyperlinks, online directories, search engines and the
like. It limits liability for the acts of referring or linking users to a site that contains
infringing material by using such information location tools, if the following conditions
are met:
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 13
! The provider must not have the requisite level of knowledge that the
material is infringing. The knowledge standard is the same as under the
limitation for information residing on systems or networks.
! If the provider has the right and ability to control the infringing activity,
the provider must not receive a financial benefit directly attributable to
the activity.
! Upon receiving a notification of claimed infringement, the provider
must expeditiously take down or block access to the material.
These are essentially the same conditions that apply under the previous
limitation, with some differences in the notification requirements. The provisions
establishing safeguards against the possibility of erroneous or fraudulent notifications,
as discussed above, as well as those protecting the provider against claims based on
having taken down the material apply to this limitation. (Sections 512(f)-(g)).
Special Rules Regarding Liability of Nonprofit Educational Institutions
Section 512(e) determines when the actions or knowledge of a faculty member
or graduate student employee who is performing a teaching or research function may
affect the eligibility of a nonprofit educational institution for one of the four limitations
on liability. As to the limitations for transitory communications or system caching, the
faculty member or student shall be considered a "person other than the provider," so


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