Overview
Copyright Law protects original works of authorship fixed in a tangible form including but not limited to images, videos, articles, and content on websites e.g., this blog post is also protected under copyright law (so don’t get any ideas…). Technology has made it easier to copy, share, save, sell, and replicate content. We can copy content with a simple click of the mouse or a snap of a photograph. This ease of sharing clearly threatens the digital works of copyright owners. It also opens the door to endless litigation against service providers who can be sued for hosting infringing material on their platforms (copyright Infringement can be very expensive and is calculated per violation of the registered work!). Consider this hypothetical, I run a website where users can post stories and images, if the user uploads a story that is plagiarized from X, X can sue me (as the owner of the website) for displaying the story on my website for potential copyright infringement even though I had no way of knowing of the infringing material. In response to this issue, Congress passed the Digital Millennium Copyright Act 1998 (“DMCA”) (also known as the Online Infringement Liability Limitation Act or “OCILLA”).
This blog post will explore original digital content and the safe harbor provisions of the DMCA and how safe harbor provisions protect online service providers from copyright infringement liability due to the actions of users.
What is the DMCA Safe Harbor?
The DMCA Safe Harbors came about when Congress sought to balance the rights of the online or network service providers (“OSP” or “Service Provider”) and the rights of copyright owners and encourage cooperation between them. The DMCA safe harbor provisions protect OSPs from all monetary liability from copyright infringement from specific activities and limits the OSPs exposure to injunctive and equitable relief. Furthermore, it shields OSPs from direct and secondary liability.
The DMCA under 17 U.S.C§512(a)-(d)provides safe harbors for four OSP activities:
- Serving as a conduit for transmitting material through its system or network (Transitory Digital Network Communications Safe Harbor).
- Hosting – Storing and making infringing materials available at the direction of users (Safe Harbor for Storage of Materials).
- Systems Caching – when material was initially made available someone else (System Caching Safe Harbor)
- Providing links or tools for locating materials online. (Information Location Tools Safe Harbor)
There are specific requirements and preconditions for each of the safe harbors. Most of these requirements are vague, complex, and disputed. Notwithstanding, it is important to remember that these safe harbors only apply when someone other than the Service Provider is the direct infringer i.e., a third party is responsible for the infringement. If the Service Provider themselves engaged in infringing activities then these safe harbor provisions will not apply.
Who is an OSP or Service Provider?
Service Providers are defined as, “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.” 17 U.S.C. §512(k)(1)(A) and “as a provider of online services or network access, or the operator of facilities therefor” 17 U.S.C. §512(k)(1)(B).
These are broad definitions and capture almost all providers of internet services and websites.
What must I do to set up a safe harbor so that I am eligible for safe harbor treatment?
Protection under the safe harbor applies If the OSP:
- designates an agent to receive notification of claimed infringement. Most businesses and nonprofits miss this step, they add a DMCA provision to their Terms of Use but fail to designate an agent with the US Copyright Office. This oversight may allow for potential copyright infringement liability;
- adopts and implements its copyright policies including a repeat infringer policy; and
- creates internal processes and procedures to manage and streamline the notice and take down process (when someone claims infringement).
How do I arrange for an agent to receive copyright claims?
You may designate an agent by registering with the US Copyright Office (for only $6 filing fees) and the registration is valid for 3 years. Once registered, the agent will receive notifications of claims of infringement on behalf of the Service Provider. The agent may be an actual human being, a role within the OSP e.g., Copyright Agent, or a third party (a law firm). Once you have registered with the US Copyright Office, you must update your website and provide the contact information for the designated agent.
The DMCA is a safety net for Service Providers, failure to comply with the rules and requirements (especially failure to register an agent with the Copyright Office) may result in the Service Provider not being able to benefit from the safe harbor provisions!
Please feel free to reach out to us if you want more information about DMCA or about designating Apex to serve as DMCA agent for your corporation or nonprofit.
The above article is for general information purposes only and should not be relied upon as specific legal advice. This article, or contacting Apex, does not in any way form an attorney-client relationship. If you have any questions or would like to learn more, please contact Maha Jafarey at maha@apexlg.com.