The Digital Millennium Copyright Act safe harbor, better known as the “DMCA safe harbor,” is one of the foundational legal concepts of the Internet in the United States. If you run a website or app and allow users to post content or you are worried about people stealing your content, you need to understand what the online copyright safe harbor is and how to use it.
a. DMCA History
Congress passed the DMCA in October of 1998, and President Clinton signed the legislation into law on October 28, 1998. You should always keep this date in mind because it was a long time ago in terms of the Internet. The vast majority of people accessed the Internet through dial-up modems in 1998, which gives you an idea of the online environment the drafters of the DMCA were trying to address at the time. Obviously, the Internet has evolved a bit since 1998 and so have the criticisms of the DMCA.
Congress did not invent the DMCA out of the blue. The law was put in place to codify copyright treaties the United States and other countries entered into with the World Intellectual Property Organization [“WIPO”] in 1996. The members of WIPO agreed this new-fangled electronic world known as the Internet should be provided with specific standard copyright rules to protect startup companies, govern online copyright disputes, and keep the court systems of each country from being overwhelmed with copyright lawsuits.
b. Blurred Lines
The DMCA amended Title 17 of the United States Code to address several copyright issues. The copyright niche we are most interested in is only copyright infringement. Generally speaking, copyright infringement is the use of a copyrighted “work” without the permission of the person who owns the copyright to it. A “work” is a creative, original form of expression. An example might include a JK Rowling Harry Potter novel, a movie poster, or the latest Billie Eilish song. In fact, we see a lot of copyright infringement claims in the musical field.
Do you recall the copyright infringement lawsuit over the song Blurred Lines? The estate of Marvin Gaye sued Calvin “T.I” Harris and Robin Thicke claiming the Blurred Lines song infringed upon the 1977 copyrighted song, Got to Give it Up, written by Gaye. Gaye’s estate won a staggering $5.3 million and 50% of royalties produced by future Blurred Lines sales and licensing fees going forward. One could say there were no blurred lines in the eyes of the judge. [Apologies. I feel shame.]
The members of WIPO and Congress were concerned that innocent copyright infringement claims would be common online given most people in the pre-digital age had no idea what copyright was, much less copyright infringement. A decision was made to protect “internet service providers” from copyright infringement claims where a user of the platform published the infringing material. The DMCA safe harbor provisions are the manifestation of such intent.
c. 17 USC 512
17 USC 512 is the critical provision. The language reads,
(a) Transitory Digital Network Communications. – A service provider shall not be liable for monetary relief…for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if –
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
In plain English, this copyright safe harbor language means an internet service provider cannot be held liable for copyright infringement claims based on content uploaded by users. Consider Facebook. You have a page on Facebook. You hear the latest Billie Eilish song and post it to your Facebook page for all your friends to hear. Have you committed copyright infringement? Yes, and you can be held liable. But what about Facebook? Under the DMCA, the answer is no. The DMCA safe harbor protects Facebook and provides it with immunity from such claims.
DMCA Service Providers
You might be wondering who qualifies as an “internet service provider” under copyright law. The specific answer is somewhat technical, but courts have interpreted the phrase broadly. Judges have held websites, apps, cable providers, search engines, social media sites, and, well, just about anything connected to the Internet qualifies as a service provider. One area that is in question is peer-to-peer networks, but that is about it for limitations.
DMCA Safe Harbor Highlights
DMCA Safe Harbor Requirements
You might be thinking the DMCA is a sweet deal for the owners of websites and apps. You would be correct. However, it isn’t all smooth sailing. Congress created a DMCA safe harbor requirements any internet service provider must follow if they wish to reap the benefits of the copyright safe harbor. The service provider waives the copyright safe harbor if it does not consistently satisfy all the requirements. In fact, a cable company known as Cox Communications was hit with a $25 million judgment a few years ago after waiving the DMCA safe harbor protections by failing to meet all the requirements.
A discussion of the exact compliance process a website or app owner must follow is beyond the scope of this article, but you can read about DMCA compliance here. Make sure to avoid the number one mistake when complying with the DMCA – get a DMCA agent.
DMCA Safe Harbor For Websites and Apps
The DMCA safe harbor is your friend if you own a website or app. You become immune from copyright infringement liability by complying with the DMCA safe harbor requirements, so why wouldn’t you? Keep in mind that the protections do not extend to situations where you or your employees post the allegedly infringing content.
DMCA for Content Producers
The DMCA is a mixed back for content producers. The good news is you can use the takedown process to get infringing content taken down. The bad news is the DMCA only applies in the United States, so sites based outside of the country may not respond. You will also run into problems with people reposting the stolen content in thousands of locations, making it a nightmare to try to track all the images down and submit complaints.
Future DMCA Changes
Commentators loved the DMCA safe harbor concept when Congress first passed the law, but that was 1998. The Internet has evolved massively in the subsequent twenty plus years. While some elements of the DMCA have held up to the test of time, other aspects have done less well. Copyright holders overuse of the DMCA complaint system is evident. No less than mighty Google is reporting it will receive over one billion DMCA takedown complaints in 2019.
Should Congress revisit the DMCA? Many people seem to feel the answer is yes, but Congress appears uninterested at this time. Nonetheless, other countries have moved towards a new approach with the EU Copyright Directive receiving a good bit of attention. The EU requires large online companies such as Google, YouTube, and Facebook to filter infringing content under the Directive. Nobody is sure if the new approach will be effective, but expect changes to the DMCA safe harbor provisions if the Copyright Directive turns out to be a success.