Advanced Copyright Law on the Internet

that list types of contact information for an agent, and does not excuse a failure to provide the
Copyright Office with any information at all.^2890

(2) General Requirements for Limitations of Liability

In addition to meeting the requirements of one of the specific safe harbors, to be eligible
for the limitations of liability, under Section 512(i) the Service Provider must adopt, reasonably
implement, and inform subscribers of a policy for the termination in appropriate circumstances
of subscribers who are repeat infringers, and must not interfere with standard technical measures
used by copyright owners to identify or protect copyrighted works that have been developed
“pursuant to a broad consensus of copyright owners and service providers in an open, fair,
voluntary, multi-industry standards process,” are available to any person on reasonable and
nondiscriminatory terms, and do not impose substantial costs or burdens on Service Providers or
their systems.

Most commercial Service Providers have a policy with respect to use of the service by
subscribers. The policy may be posted on the Service Provider’s website, contained in the
subscription agreement, or both. Operators of corporate intranets will likewise want to post a
policy on the intranet itself, and may wish to update employee handbooks or policy manuals to
incorporate the policy statements required to take advantage of the safe harbors. All Service
Providers should reasonably document their efforts to enforce their policies.

(3) Special Provisions for Nonprofit Educational Institutions

Section 512(e) contains an additional liability limitation for nonprofit educational
institutions. According to the Conference Report, Congress recognized that university
environments are unique, and a university might otherwise fail to qualify for the safe harbors
simply because the knowledge or actions of one of its employees might be imputed to the
university under basic principles of respondent superior and agency law. Based upon principles
of academic freedom and independence, Congress believed that in certain circumstances it would
be inappropriate for actions online of faculty members and graduate students to be imputed to the
university to prevent it from being eligible for the safe harbors.

Accordingly, Section 512(e) provides that online infringing actions of faculty members or
graduate student employees that occur when they are “performing a teaching or research
function” will not be attributed to the university in its capacity as their employer, and the
university will therefore not be charged with such faculty member’s or graduate student’s
knowledge or awareness of his or her infringing activities, if (i) the infringing activities do not
involve the provision of online access to instructional materials that are or were required or
recommended, within the preceding three-year period, for a course taught at the university by
such faculty member or graduate student; (ii) the university has not, within the preceding three-
year period, received more than two notifications of claimed infringement by such faculty
member or graduate student; and (iii) the university provides all users of its system with

(^2890) Id. at *19-21.