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March 30, 2020
Digital Millennium Copyright Act (DMCA) Safe Harbor
Provisions for Online Service Providers: A Legal Overview
In 1998, Congress enacted the Digital Millennium
Copyright Act (DMCA), Pub. L. No. 105-304, to usher
copyright law into the digital era. The ease and efficiency
of digital copying and distribution seemingly threatened to
increase infringing activity and undermine the rights of
copyright holders. Some internet companies feared that if
they were held liable for infringing material hosted on their
platforms, it would impair their business models and stifle
technological innovation. As a compromise, Congress
created the DMCA safe harbor provisions, codified at 17
U.S.C. § 512 (section 512). These safe harbors shelter
online service providers (OSPs) from liability for indirect
copyright infringement on their platforms under certain
conditions, while also encouraging OSPs to cooperate with
copyright owners in combating infringement online.
Copyright law grants creators of expressive works a set of
exclusive rights in their creations. The central purpose of
copyright law is to encourage the creation and
dissemination of knowledge and learning by providing
incentives for the creation of new works.
Copyright protection attaches to a broad range of creative
expression, including literary works (including computer
code); musical works; dramatic works; choreographic
works; pictorial, graphic, and sculptural works; audiovisual
works (movies and television); architectural works; and
sound recordings. Copyright holders have the exclusive
right to prepare derivative works, and to reproduce,
distribute, and publicly display or perform their works. The
current copyright term generally lasts for the life of the
author plus seventy years. An important limitation on these
rights is fair use, a judicially created doctrine that permits
certain socially valuable uses (e.g., quotations for literary
criticism) based on four factors: (1) the purpose and
character of the use; (2) the nature of the underlying
copyrighted work; (3) the amount and substantiality of the
copyrighted work taken; and (4) the use's effect on the
market for the copyrighted work.
To enforce their rights, copyright holders may file lawsuits
against alleged infringers-that is, persons who prepare
unauthorized derivative works, or reproduce, distribute, or
perform the copyrighted work without permission. Persons
who take one of these actions themselves are called direct
infringers. In some situations, third parties can be liable for
the direct infringement of another person. Vicarious
liability occurs when a third party has the legal right and
practical ability to control infringing activity and receives a
direct financial benefit from the infringement. Contributory
liability arises when a third party has actual or constructive
knowledge of specific instances of infringement, and
induces or materially contributes to the infringing conduct.
Prior to the DMCA, internet companies that transmitted and
stored user-generated content were concerned about the
legal implications of hosting infringing material on or
through their systems and platforms.
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To address these concerns, the DMCA limits the liability of
OSPs for copyright infringement. Section 512 includes four
different safe harbors, limiting the OSPs' liability for
infringing material that OSPs (a) transmit, route, or provide
connections for through their systems; (b) cache or
temporarily store on their systems; (c) store on their
systems at the direction of their users; and (d) link or refer
to the online location of, by using information location
tools, such as directories.
The safe harbor provisions do not generally require OSPs to
monitor their own systems actively for infringing materials.
With the growth of online platforms that exist primarily to
host user-generated content (e.g., YouTube), the section
512(c) safe harbor has grown in significance.
Each safe harbor provision has its own eligibility
requirements, but there are three general requirements that
apply to all four safe harbors.
First, the entity seeking protection under section 512 must
meet the statutory definition of service provider, a
definition that varies depending on which safe harbor
provision applies. For section 512(c), a service provider is
defined as a provider of online services or network access,
or the operator of facilities therefor. This definition
appears to be purposefully broad and is understood to
encompass (at a minimum) providers offering email
services, hosting services, and internet access. This
definition seemingly includes entities that are not in the
business of providing online services, but incidentally
perform such functions (e.g., a media company with a
website that hosts user comments).
Second, the OSP must adopt[] and reasonably implement[]
... a policy that provides for the termination in appropriate
circumstances of users who are determined to be repeat
infringers of copyrighted material. The OSP must also
inform users that it has a method of terminating repeat
infringers' accounts. The OSP's process of identifying and
sanctioning repeat infringers does not need to work
perfectly to satisfy this provision. Cases such as Ventura
Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir.
2018), hold that the termination policy simply needs to
work a reasonable amount of the time. This case also
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