The Digital Millennium Copyright Act, better known as the DMCA, is a federal law in the United States. Enacted in 1998, the DMCA is often referred to as though it protects a website or app from copyright infringement claims. The law only provides such protection in particular situations. What is DMCA? A way to insulate yourself from particular copyright claims associated with user-generated content. Let’s dig into the law.
People often refer to the DMCA as though it is an agency of the government like the IRS. It is not. The DMCA is a law. You do not file complaints “with the DMCA” or report copyright infringement “to the DMCA.” If someone threatens to report you to the DMCA, smile and encourage them to do so.
The DMCA is a double-headed beast. Section 1201 and its brethren address the issue of anti-circumvention wherein parties attempt to defeat digital rights management security of other parties. A person breaking the anti-copy measures of a DVD, copying the content, and republishing it would be an example. This area of the law is technical and hotly debated.
The second head of our beast is Section 512(c). This section is also where we find “DMCA safe harbor” provisions from copyright infringement claims made against online businesses. In layman’s terms, this is the section people are referencing when they talk about being “DMCA protected.”
17 U.S. Code § 512(c)
Section 512(c) reads as follows:
(c) Information Residing on Systems or Networks At Direction of Users.
(1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider:
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and…
Let’s translate the code into English. Section 512 means that websites and internet-connected apps are protected from copyright infringement claims based on content uploaded by users. Assume you have a Twitter account. The Eagles win the Super Bowl. You copy a photograph of a deflated Tom Brady [see what I did there?] sitting on the field in defeat from the Sports Illustrated site and post it on your Facebook page as part of an article you write on the game. This action will likely be classified as copyright infringement, and you can be held liable. Under the DMCA safe harbor provisions, Facebook is protected from such claims because it falls within the safe harbor provisions of Section 512(c) which render it immune to such claims. You can gain the same protection with your site or app.
No DMCA Protection For You
The protection provided under Section 512 is not absolute. One need only read sections (A)(i) through (iii) above to understand as much. Courts have held that where a site or app selects and posts the content in question, then you waive the DMCA protection. Put another way, any business relying on the DMCA to protect it against user-generated content copyright claims needs to understand where the lines are drawn on the safe harbor provision.
Most online businesses now encourage their visitors to interact with the website or app. These interactions expose you to potential legal claims of which copyright infringement is the most common. Any business allowing users to post comments, images, videos, photographs, and so on to the businesses digital properties should seek out the protection provided by the DMCA as a matter of course.
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