DMCA and OSP liability limitations

[JQ Johnson]

Michael Piper asks about DMCA and how its OSP liability limitations affect
library web sites.

There's been quite a bit of dispute about this.  Several good sources of
commentary are available, e.g.
	ARL's analysis of the DMCA, <http://www.arl.org/info/frn/copy/dmca.html>
	EDUCAUSE resources on DMCA, <http://www.educause.edu/issues/dmca.html>
Kenny Crews analysis of OSP liability, "New Copyright Legislation Directly
Affects Teaching and Research". 7 Dec 1998 (couldn't find it on line, but
cf <http://www.cni.org/tfms/1998b.fall/handout/KCrews-ppt/>).  In the
draft that I read, Kenny was quite negative about the OSP provisions.

My sense is that the OSP provisions of Title II of the DMCA are very
complex, and that we won't have a good understanding of what they really
mean for quite some time.  On the surface, they appear to be a good thing
for libraries and universities, but one should be cautious.  Among the
issues:

1/ if one takes advantage of the liability limitations, it shields your
institution only from vicarious liability, e.g. by casual users of your
systems.  If a member of your staff is the claimed infringer, you're still
liable as employer, even if you're not liable as OSP.  So I don't see that
it does you much good unless you allow publication of web pages on your
server by non-employees.
2/ there are some significant costs that an institution would have to
accrue to take advantage of the liability limitations.  In particular, the
instituion would need to establish a policy for tracking infringements and
dealing with infringers and claimants.  DMCA also requires the
establishment of a copyright education program.
3/ most problematic, DMCA requires a particular approach to dealing with
claimed infringers that may be too strict.  You get a claim of
infringement and you must take the claimed-infringing material off line.
There are provisions for restoring the site.  But if you get 3 claims of
infringement directed at the same individual, my initial reading of the
law is that you have to disable the user's account (not just remove the
infringing material) even if both of the previous claims have been found
to be without cause.  Etc.

At my institution, our counsel is currently looking closely at DMCA to
decide if we want to take advantage of its provisions.  If we do so (we
probably will) it will be on an institution-wide basis; we'll submit one
contact name for the whole university rather than registering individual
contacts for individual web servers or departments.

JQ Johnson                      Office: 115F Knight Library
Academic Education Coordinator  mailto:jqj at darkwing.uoregon.edu
1299 University of Oregon       phone: 1-541-346-1746; -3485 fax
Eugene, OR  97403-1299          http://darkwing.uoregon.edu/~jqj/