Title II of the Digital Millennium Copyright Act (DMCA) of 1998 introduced new limitations on liability for copyright infringement by online service providers (OSPs). These limitations were put in place to protect OSPs from copyright infringement suits when engaged in standard operational activities based on transitory communications, system caching, storage of information on systems or networks at the direction of users, and information location tools. After almost ten years under the DMCA, a number of issues and limitations have emerged, including conflicts with existing laws, abuse of the notification and takedown provision, and threats to fair use.
Title II also establishes a procedure for copyright owners to obtain a subpoena from a federal court to order an OSP to disclose the identity of a subscriber who is allegedly engaging in infringement of their copyright. Included in this procedure is a provision for notification and takedown by OSPs of content suspected of this type of infringement and a disclaimer that nothing in these procedures require a provider "to monitor its service or access material in violation of law (such as the Electronic Communications Privacy Act, Title I) in order to be eligible for any of the liability limitations” (U.S. Copyright Office, 1998).
To qualify for these safeguards, an OSP must adopt and reasonably implement a policy of terminating the accounts of subscribers who are repeat infringers (in appropriate circumstances) and provide reasonable notification to their customers of this policy. It must also designate an agent to receive notifications of claimed infringement and file this information with the U.S. Copyright Office (17 U.S.C. § 512).