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The Online Copyright Infringement Liability Limitation Act (OCILLA) is a portion of the Digital Millennium Copyright Act – Section 512 of the Copyright Act. It is a 1998 United States federal law that provides safe harbors to online service providers (e.g., internet service providers, hosting providers, etc.) who act promptly to take down content if someone alleges it infringes their copyright.

If the conduct of an online service provider meets all the requirements of a safe harbor, then the service provider will be exempt from liability for monetary damages for copyright infringement.

Section 512 was added to the Copyright law in Title 17 of the United States Code (Public Law No. 105-304, 112 Stat. 2860, 2877).

This provision of the United States copyright law is best known for allowing copyright holders to request that an online service provider (OSP) removes access to copyright-infringing material if the copyrighted material is made available through the OSP. It is a powerful device for protecting copyright on the Internet for providers located in the United States. However, many foreign providers may also respond to takedown requests for fear of litigation in the United States should they have any significant business interests on U.S. soil.

In exchange for this, the OSP gains:

• new protection from liability to its own customers as a result of a decision to remove material;
• clear procedures for removing and restoring material;
• a safe harbor against copyright infringement claims, similar to the protection against non-intellectual property infringement liability provided by Section 230 the Communications Decency Act (CDA).

Customers benefit from a reduced chance that works will be removed unnecessarily by an OSP which hasn’t received an infringement complaint.

The Online Copyright Infringement Liability Limitation Act (OCILLA) adds four distinct safe harbors for online service providers:

1. Transitory Digital Network Communications – as far as the routing of messages for users across the Internet, a service provider will not be liable for copyright infringmenet for simply acting as a conduit and the following conditions are met:
   • the service provider did not initiate or direct the transmission of the material;
   • the transmission, routing, provision of connections, or storage of copyrighted material was performed through an automatic technical process and the service provider was not involved in selecting the material;
   • the service provider did not select the recipients of the material except as an automatic response to a request;
   • the service provider did not make the material accessible to anyone else but the expected recipients;
   • the service provider did not keep the material for longer than reasonably necessary; and
   • the service provider transmitted the material throughout the system or network without making any changes to the content.
2. System caching – it is common practive for service providers to cache copies of web pages that are frequently accessed by its users for the purpose of minimizing traffic and/or facilitating quicker access to the requested material. The defense of system caching only applies if the following criteria are met:
   • the material was made available online by a person other than the service provider;
   • the material was not transmitted to, from, or at the request of the service provider;
   • the storage of the copyrighted material occurred through an automatic technical process;
   • the content of the material was not modified by the system caching;
   • the service provider complied with the generally accepted rules concerning refreshing, reloading, or other updating of the material if specified by the person making material available online, unless the rules were meant to prevent or unreasonably impair system caching;
   • the service provider did not interfere with the ability for the material to return to the original provider of the information;
   • if access to the material was limited by a condition, the service provider did not allow access to the material unless the requester satisfied that condition; and
   • the service provider expeditiously removed or disabled access to the infringing material or activity upon receipt of a valid notification of claimed infringement.
3. Information residing on systems or networks at the direction of users – this safe harbor is probably the one most commonly associated with the OCILLA. Its essence is the “notice and takedown” provision, i.e. when properly notified of alleged copyright infringement, the service provider must take it down. Such takedowns can be challenged by the user, but putting back the content is delayed 10 to 14 business days to give the complaining party enough time to file an infringement suit. The copyright owner can also subpoena the service provider for the identity of an alleged infringer. This defense can be invoked if the service provider:
   • lacked actual knowledge that the material or activity on the system or network was infringing;
   • was either (a) not aware of facts or circumstances from which specific infringing activity was apparent, or (b) upon obtaining such knowledge or upon receiving a valid notification of claimed infringement, acted expeditiously to remove or disable access to the material; and
   • while having the right and ability to control the infringing activity, did not receive a financial benefit directly attributable to the infringing activity.
4. Information location tools (such as search engines or online directories). Based on this safe harbor, the service provider can contend it is not liable for copyright infringement because the infringement occurred in the context of the provider’s provision of information location tools to refer or link users to infringing material or activity. This defense can be invoked under the exact same condition as the ones applicable to safe harbor #3 (see above).

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