Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

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 Report.]

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 sentences!)?  

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?  hardware?

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 while?

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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