The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 9
Each limitation entails a complete bar on monetary damages, and restricts the
availability of injunctive relief in various respects. (Section 512(j)). Each limitation
relates to a separate and distinct function, and a determination of whether a service
provider qualifies for one of the limitations does not bear upon a determination of
whether the provider qualifies for any of the other three. (Section 512(n)).
The failure of a service provider to qualify for any of the limitations in section
512 does not necessarily make it liable for copyright infringement. The copyright
owner must still demonstrate that the provider has infringed, and the provider may still
avail itself of any of the defenses, such as fair use, that are available to copyright
defendants generally. (Section 512(l)).
In addition to limiting the liability of service providers, Title II establishes a
procedure by which a copyright owner can obtain a subpoena from a federal court
ordering a service provider to disclose the identity of a subscriber who is allegedly
engaging in infringing activities. (Section 512(h)).
Section 512 also contains a provision to ensure that service providers are not
placed in the position of choosing between limitations on liability on the one hand and
preserving the privacy of their subscribers, on the other. Subsection (m) explicitly
states that nothing in section 512 requires a service provider to monitor its service or
access material in violation of law (such as the Electronic Communications Privacy Act)
in order to be eligible for any of the liability limitations.
Eligibility for Limitations Generally
A party seeking the benefit of the limitations on liability in Title II must qualify