Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/323

11. 3. 2. the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement;
       3. whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and
       4. whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available.
    4. Notice and ex parte orders.—Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network.
12. Definitions.—
    1. Service provider.—
       1. As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
       2. As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
    2. Monetary relief.—As used in this section, the term “monetary relief” means damages, costs, attorneys’ fees, and any other form of monetary payment.
13. Other Defenses Not Affected.—The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.
14. Protection of Privacy.—Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on—
    1. a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (1); or