If you operate a submission-based website where content is uploaded by third-party users without your initial vetting and approval, you should be very interested indeed in the DMCA Safe Harbors.
What is a DMCA Safe Harbor?
The Digital Millenium Copyright Act of 1998 (the “DMCA”) is a law which was passed in 1998 and was written with the express purpose of developing a legal framework to manage the competing interests of protecting copyright holders while not excessively burdening the owners of user-submitted, content-based websites like Youtube. Consider for the moment how many videos are uploaded on to Youtube every single hour of the day and how many of these videos are posted without permission of the original content producer? There is, of course, a mind-boggling amount of theft. Would it be fair for our legal system to blame and hold liable Youtube for this digital piracy? The DMCA was designed because lawmakers believed it would certainly not be fair and required a legal mechanism to both hold-youtube partially responsible for the content posted on its platform while not rendering it susceptible to 24/7 copyright infringement lawsuits.
How would such a lofty goal be achieved? Simple. The DMCA put forth provisions, or Safe harbors (17. U.S.C§ 512), which treated online service providers (“OSPs”) like Youtube, as mere conduits of information, and therefore not original “publishers” of potentially infringing content, as long as the OSPs met certain conditions and took specified like removing infringing material when notified. In laymen’s terms, as long you do not actively participate in the publication of infringing activity, your website can be granted a DMCA SafeHarbor.
What is Copyright Infringement?
To truly understand the importance of a DMCA SafeHarbor, one must first understand the definition of copyright infringement. Remember, our legal system places great importance in protecting an individual’s unique and creative work of art. Stealing other people’s ideas is not a good thing. Copyright infringement then is the reproduction, distribution, performance, public display, or creation of a derivative work without the permission of the copyright owner. If a person were to access a copy of Lady Gaga’s new music video before it came out and reproduced or released it on Youtube, who should Lady Gaga be able to sue? Before the DMCA was codified into law, Lady Gaga might very well have decided to sue Youtube instead of the thief who uploaded the stolen video!
What are the four DMCA Safe harbors?
- Storage Safe Harbor – Meant specifically to cover OSPs upon which users directly store or upload content
- Transmission Safe Harbor – Meant to account for OSPs (like telecommunications businesses) which transmit or route content by end-users
- Caching Safe Harbor – Designed to halt liability when infringing content is temporarily stored on the system or network
- Information Location Tools Safe Harbor – Designed to halt liability when OSP refers users to a digital hub containing infringing content or activity
How Do I Know if I Need a DMCA SafeHarbor?
Remember, the point of these Safe harbors is to provide a metaphorical “Safe harbor” for those OSPs which are prone to Copyright Liability. The Safe harbors were designed to minimize liability, as long as the OSPs acted in good faith to comply with removal measures when informed that nefarious activity had taken place on the given platform.
Not all websites will need to register for a DMCA Safe Harbor, however, if you’re a user submission based website, you will with near certainty require a DMCA SafeHarbor. As long as you can prove you’re just a host or conduit for user-generated content, you are likely eligible for these protections.
What are the DMCA SafeHarbor Requirements?
In order to qualify for DMCA Safe Harbor protection, there are a series of procedures and guidelines that must be met. The OSP must;
1. Register with the Copyright Office and appoint a designated agent.
2. Renew its DMCA Safe Harbor protection every three years.
3. Implement a DMCA SafeHarbor policy and make it accessible to its users (see the repeat infringer policy(§ 512(i)(1)(A).) ).
4. Dutifully manage and implement its notice-and-take-down policy
5. Remove any infringing material upon notification that the material is in fact impermissible
6. Ensure that it does not financially benefit from the infringing content
Does the DMCA Protect against every kind of Intellectual Property Infringement?
NO. The DMCA protections are explicitly meant to target copyright infringement and will not be applicable to non-copyright claims including trademark infringement, defamation, invasion of privacy etc., nor will it apply to OSPs which are immediately responsible for the infringing activities.
DMCA SafeHarbor Protections: Make or Break Your Business
The DMCA is so critically important because of the massive amount of liability it prevents an OSP from incurring. It is undeniable that copyright theft and infringement will only increase as user-based platforms become more ubiquitous. Owners of these platform must do everything to protect themselves. Your business may depend on it. Contact a Startup Lawyer to learn how.
