Section 512 (Online Copyright Infringement
Liability Limitation Act)
Questions to Consider on Second and Subsequent Readings
[In considering these questions, put on your "ISP General Counsel
Hat." That is, think of yourself as general counsel advising an
Internet Service Provider, such as AOL, seeking to extract the maximum
advantage, i.e., the least risk of legal exposure, from Section 512.
Be sure to consider both the language of the statute and the House
1. List the types of general activities (technical functions) of service
providers that Section 512 covers. How many activities are protected
and how would you describe them generally (in bullet points, not complete
2. Are there any general conditions that ISPs must satisfy in order
to have the benefit of this statute for covered activities? If so,
what are they, and how would you advise your client to satisfy them? Does
satisfying these general conditions require advance preparation, or can
you satisfy them later, as an "afterthought" in litigation?
3. For each covered type of activity, list the conditions (in bullet
points, not complete sentences) that must be satisfied in order for the
ISP to get the greatest benefit from the statute. Are the conditions
clear? Would they be satisfied in the ordinary course of a typical
ISP's business, or would the ISP have to a make special effort to meet them?
Might it have to change any of its operating procedures? software?
4. Suppose the ISP substantially meets the conditions for protection
of a covered activity. Precisely what protection does the statute
grant? How would you describe to a nonlawyer, in simple but accurate
terms, the benefit achieved from doing what the statute requires in order
to qualify for its protection? Could you convince your client, a major
ISP, that doing what is necessary to receive the section's benefits is worth
5. How would you advise the ISP if it receives a notification of infringement?
What would you tell it to do? What would you tell it to look
for in the notification in order to determine whether the notification should
trigger action on its part? If action is required, what action should
the ISP take? What can/should it do both to comply with the law and
to maintain good relations with its customers?
6. How would you advise the ISP if it receives a subpoena ordering
the identification of an account holder or subscriber? What would
you tell it to look for in order to determine whether the subpoena must
be complied with and, if so, how would you advise it to comply? Suppose
the ISP wishes, as a courtesy and for good customer relations, to notify
the account holder or subscriber who is the target of the subpoena and,
before complying, give the account holder some time to respond, for example,
by bringing an action to quash the subpeona. Can the ISP do so lawfully?
Is it proper and appropriate that clerks of courts issue subpoenas
having the full force of law without any judicial review? Might there
be any constitutional objections to such a procedure?
7. Suppose you represent a major ISP, with millions of customers (such
as AOL), and your client directs you to draw up a practical plan for extracting
maximum benefit out of the statute in all of its operations. What
organizations or "task forces" would you advise it to set up internally,
and what general operating procedures would you advise it to put in place?
For each internal organization, who should control it: lawyers, business
people, or technical people? Who would you recommend be put in charge
overall? Would you organize the "compliance team" around legal issues,
business operations, or technical activities? What considerations
might affect your choices?
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