Talk:OCILLA details

message: The Online Copyright Infringement Liability Limitation Act (OCILLA), Title II of the DMCA legislation, creates a right in section 512 of the Copyright Act (17 U.S.C. sec. 512) that provides a safe harbor for a ISPs against copyright liability and additional penalities specific to the DMCA for copyright infringement under the federal law. The courts have generally upheld these provisions when they involve "512(c)- Information Residing on Systems or Networks At Direction of Users", such as a hosting service that rents disk space and network access. Courts have also, in some cases, ruled that open content sites (examples being a blog, a forum or even a Wikipedia) cannot be held responsible for the infringements by their members if they take timely advantage of the act's safe harbor provision. However, an open content site that willfully and outrageously flaunts the law by encouraging or condoning infringement and provides no mechanism for policing of copyright issues or dispute resolution as provided in the OCILLA may well be liable — in such a situation the courts may find even an open content site liable for copyright infringement. 
The new section 512 provides for the appointment of a designated agent under the act through the U.S. Copyright Office with public notice on the ISP web site. Should an ISP maintain such a designated agent, a aggrieved copyright holder can make a written complaint to the ISP to remove or block access to any offending site found on an ISP's server. A complaint, to be compliant and therefore require recognition and action by the ISP, must provide specific details as described in the language of that law, that cleary identify the material and the complaint must also include an affadavit by the complainant, under oath, with criminal perjury penalities, as to the truth of claims in the complaint. The language of the DMCA 512(c)(1) specifies that upon getting a conforming complaint an ISP aquires safe harbor status (protection against civil and criminal penalites) only when the ISP, as stated in DMCA 512(c)(1)(C)," . . . upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing." 
If the ISP does not expeditously remove the material it may become vulnerable to legal action for money damages and/or possible criminal action and/or injunctive relief. The Communications Decency Act (CDA) and prior case law had already established a fairly clear lack of liability for ISPs, so it is not likely that there would be actual liability, in spite of the loss of the guaranteed safe-harbor. 
The key word in the safe-harbor exception language is "expeditously," a term that does not allow delay or alternatives. The law does not allow delay while the ISP contacts the site owner nor does it give authority for any other delay in blocking or removal. Given the ease with which DNS (Domain Name Server) blocking may be accomplished by a simple stroke, the definition of expeditiously is more likely in hours, not days. 
An ISP's liability to the client whose web site has been affected by blocking or removal of alleged ingringing material is limited by 512(g)(1) but the law does require prompt notice from the ISP to the alleged infringing client that the action has taken place and give that party ten days to file a counterclaim denying the infringment. If the alleged infringer does not file a counterclaim under the procedure provided by the act, the ISP must permanently remove the infringing material. If the alleged infringer does file a timely and conforming counterclaim, the original complaiant must then launch a legal action for copyright infringment against the alleged infringer or, that action lacking, the ISP may restore access to the material.JamesDay 09:25, 15 Sep 2003 (UTC)
thread_title: Text removed from [[DMCA]] title II and pending integration here

message: The meaning of expeditious in the context of this law has not yet been determined. In general, it depends on the circumstances, allowing more time than "immediate" but not undue delay. Taking more than 24 hours could well be viewed as undue delay. Taking action within the hour to tell a customer that a takedown notice has been received and they must immediately remove the content and confirm removal, giving them six to twelve hours to comply, otherwise the content or their internet connection will be taken down, may be considered reasonable. It's useful to remember that the CDA still protects the OSP from liability for content provided by third parties, so even if a removal is found not to be expeditious, there is still room to balance the desire to assist with protection of intellectual property rights and the desire to preserve good customer relations.
(Source: discussion of the meaning of expeditious in this context with a law professor...)
Please sign your posts on all talk pages. This is just one opinion. It is not the only opinion in this area. No court has yet to rule on many of these issues under this law as not many people are bringing suits to challenge the law, i.e. it seems to work very well and OSPs seem to comply with it to the satisfaction of those alleging infringement. — Alex756 02:15, 11 Oct 2003 (UTC)
thread_title:  Notes on Expeditious