1999 Guidelines for Compliance with the Online Service Provider Provisions of the DMCA

II. Applicability To Non-Profit Educational Institutions

As noted above, non-profit educational institutions are not exempt from the DMCA definition of a service provider; however, the Act contains a special provision for such institutions (17 U.S.C. § 512(e)). The provision is designed to clarify that not all activity of a faculty member or a graduate student who is an employee performing a teaching or research function will be considered the institution's activity. Such a faculty member's or student's knowledge or awareness of his or her infringing activity will not be attributed to the institution if:

1. The activity does not involve access to instructional materials that are or were "required or recommended" within the preceding three years for a course taught by that faculty member or graduate student;
2. The institution has not received more than two "notifications" (as described below) of infringement by such faculty member or graduate student in the preceding three years; and
3. The institution provides informational materials that accurately describe and promote compliance with federal copyright laws.