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The DMCA's Safe Harbor Protections

The Digital Millennium Copyright Act (DMCA) was enacted in 1998 by President Bill Clinton. The Act implemented two important World Intellectual Property Organization (WIPO) treaties and created a set of federal rules aimed at protecting copyrights in the digital age.

Title II of the DMCA offers four safe harbor provisions to protect online service providers from liability for direct, contributory and vicarious copyright infringement. The Act defines service providers broadly, including those who provide connections to Web sites, Internet access, mail, chat room and Web page hosting services.

Before a service provider may be eligible for one of the safe harbor protections, they must:

  • Adopt and enforce a policy of terminating subscribers and account holders who repeatedly infringe copyright laws
  • Accommodate the use of any standard technical measures, like digital watermarks, by copyright owners to identify and protect their work, as well as refrain from interfering with a copyright owner's use of one of these measures

Service providers do not have a duty to monitor or actively seek out subscribers or account holders who violate copyright laws. However, once service providers receive notice that infringing materials appear on their system, they must take action to remove the materials or block access to them in order to qualify for one of the safe harbors.

There are four safe harbor provisions: routing and transient storage, caching, storage and information location tools. A brief summary of each appears below.

Routing and transient storage

This provision generally applies to instances when the service provider merely acts as a conduit to transmit data from one party to another. To qualify for the safe harbor:

  • The service provider cannot be the one initiating the transmission
  • The transmission, copying, routing or provision of connections for the data must be the product of an automatic technical process in which the service provider plays no role in selecting the data
  • The service provider cannot choose the recipients of the data
  • Any copies made of the data cannot be made available to anyone but the intended recipients and the copies cannot be kept for any longer than reasonably necessary
  • The service provider cannot modify the content during transmission

Caching

Service providers generally keep copies for a limited amount of time of the material made available by someone else online and transmitted to a subscriber. A copy is kept so that if a subsequent request for the material is made, the copy can be sent rather than requesting the material for its original source. This allows service providers to reduce their bandwidth requirements and waiting times for subsequent requests of material.

Caching may be permissible so long as the service provider uses only temporary or intermediate storage, the caching occurs as the result of an automatic technical process and the data is only made available to the subscribers who subsequently request it. Other conditions also must be met by service providers in order to qualify for this safe harbor, including following refreshing material rules when necessary to comply with generally accepted industry standards and limiting user access to material that has access restrictions, such as password protections.

Storage

Service providers also may escape liability for infringing materials that are stored on Web sites they host. The safe harbor will not apply in instances when the service provider knew or should have known of the infringement, or after being notified of the infringement, failed to remove the materials or block access to them. Also, the service provider cannot receive any financial benefit from infringing activities it has the right or ability to control.

In order to ensure service providers receive proper notice of infringing activities on their systems, they are required to provide the Copyright Office with contact information for an agent responsible for handling the notices.

Information Location Tools

This safe harbor provision applies to linking, online directories, search engines and other location tools that a service provider may offer its users. These devices have the potential of connecting users to infringing materials. Service providers may avoid liability for infringing materials accessed through information location tools in the same ways it may for storing infringing materials:

  • The service provider may not have actual or constructive knowledge of the existence of the infringing materials
  • Upon receiving notice of infringement, the service provider must remove or block access to the link or other location tool that provided subscribers with access to the materials
  • The service provider cannot receive a financial benefit from the infringement if it has the right and ability to control it

For more information on the DMCA in general or the safe harbor provisions in particular, contact an attorney experienced in intellectual property issues in your area today.

Learn More: Reasons to Contact an Intellectual Property Attorney

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Reasons to Contact an Intellectual Property Attorney

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