location tools: a site-linking aid or directly, including a hyperlink or index; a navigational aid,
including a search engine or browser; and the tools for the creation of a site-linking aid. Third, it
provided immunity from direct, vicarious or contributory liability to OSPs for stored third party
content, unless upon receiving notice of infringing material that complied with certain defined
standards, the OSP failed expeditiously to remove, disable, or block access to the material to the
extent technologically feasible and economically reasonable for the lesser of a period of ten days
or receipt of a court order concerning the material.
Hearings were held in Sept. of 1997 on both H.R. 2180 and S. 1146. These hearings
revealed lingering conflict between service providers and copyright owners on liability issues.
Rep. Goodlatte led continuing negotiations between the content providers and OSPs, and to
further a comprise, he and Rep. Coble introduced on Feb. 12, 1998 a substitute for H.R. 2180,
entitled the “On-Line Copyright Infringement Liability Limitation Act” (H.R. 3209).
On April 1, 1998, the House Judiciary Committee approved the substance of H.R. 3209,
but folded it into the pending WIPO implementation legislation, H.R. 2281. Subsequently, based
on continuing negotiations, an agreement was finally reached between service providers and
copyright owners with respect to the proper scope of liability for online infringements of
copyright. H.R. 2281 was then amended to include this compromise agreement.
Meanwhile, similar actions were taking place in the Senate. The provisions of S. 1121,
implementing the WIPO treaty, were combined with a new title embodying the compromise
agreement between service providers and copyright owners with respect to liability.^2260 The
combined Senate bill was denominated S. 2037, and was unanimously approved by the Senate
Judiciary Committee in April of 1998 and adopted by the full Senate in May of 1998.
Both H.R. 2281 and S. 2037 contained the same substantive provisions with respect to
OSP liability, which were ultimately adopted in the DMCA.
(b) The OSP Liability Provisions of the DMCAThe liability provisions are contained in Title II of the DMCA. Title II seeks to clearly
define the conditions under which an OSP’s liability for infringements that occur on the OSP’s
systems or networks will be limited. Specifically, Title II defines four safe harbors that are
codified in a new Section 512 of Title 17. If the OSP falls within these safe harbors, the OSP is
exempt from monetary damages and is subject only to carefully prescribed injunctive remedies.
As the legislative history states, “New Section 512’s limitations on liability are based on
functions, and each limitation is intended to describe a separate and distinct function. ... [T]he
determination of whether a service provider qualifies for one liability limitation has no effect on
the determination of whether it qualifies for a separate and distinct liability limitation under
another new subsection of new Section 512.”^2261 This principle was codified in Section 512(n)
of the DMCA, which provides: “Subsections (a), (b), (c), and (d) describe separate and distinct
(^2260) Sen. Patrick Leahy and Sen. John Ashcroft drafted the compromise agreement for incorporation into pending
legislation.
(^2261) H.R. Rep. No. 105-551 Part 2, at 65 (1998).