In order to deal with copyright in a time of rapidly changing technology, Congress implemented the Digital Millennium Copyright Act (DMCA) in 1998. A portion of the DMCA (Section 512) is known as the Safe Harbor Provision. The provision recognizes that it is very difficult for online service providers (OSPs or service providers) to screen each post by a user to make sure the post does not infringe a copyright. Thus, it is easy for the OSP to inadvertently host an infringing work.
If you are thinking about holding a service provider responsible for copyright infringement, you should be aware that several “safe harbors” described under section 512 significantly limit the liability of a service provider. Each safe harbor represents an aspect of the normal operations of the Internet that Congress wanted to protect. Meeting the conditions of any one of them is enough to receive protection. However, a provider cannot mix and match aspects of the safe harbors. In addition to asserting a safe harbor defense, a provider can also assert other defenses.
The safe harbors are listed in 17 U.S.C. § 512. They are transitory digital network communications, system caching, information residing on systems or networks at users’ direction, and information location tools. The safe harbors address and limit the penalties that can be levied or not levied against an OSP for infringing conduct.
The Four Safe Harbors
The transitory digital network communications category protects OSPs that are passive or mere conduits from being liable for copyright infringement. Passivity exists where the infringing material is being transmitted at a third party’s request, is handled by an automated process, is not modified by the OSP, and is only temporarily stored on the system. If an OSP is serving as a “mere conduit,” the court can restrain the provider from giving access to a subscriber who is using the provider’s service to engage in the infringement and require the service provider to terminate that subscriber’s account. A traditional service provider like Comcast is protected under this category.
The system caching category protects service providers that cache material, or create copies of materials for faster access. The caching must be standard and originate elsewhere, and it must be transmitted at the request of another party. It cannot modify the material or interfere with reasonable copy protection. When cached material is made available to an end-user, the OSP has to follow certain provisions related to takedown and put back. There is not much case law associated with this safe harbor.
The category of hosting is a commonly invoked safe harbor. Hosting involves information living on systems at the direction of users. It protects service providers that do not have actual knowledge of the infringing material, are not aware of circumstances from which infringement can be inferred, and upon finding out about the infringement act quickly to remove or disable access to infringing materials. To take advantage of this safe harbor, the OSP may not receive a financial benefit from the infringement if it has the right to control that activity. Additionally, the service provider must have a designated agent listed to receive notice of claimed infringement.
The information location tools category protects service providers that link users to an online location that contains infringing material, as long as the service provider does not know the material is infringing. However, if a service provider learns the material is infringing, it is required to disable access, and if the service provider has control over the infringing activity, it cannot derive financial benefit by providing the link.
Injunctions Against Service Providers
Generally, an OSP can be restrained from giving others access to infringing material, restrained from giving a particular infringing subscriber or account holder access to its services, or subjected to other injunctive relief that a federal court considers necessary to restrain the infringement of copyrighted material.
Courts consider these factors when deciding whether to grant an injunction against a service provider and what the injunction’s scope should be:
The burdensomeness of the injunction;
The potential magnitude of the harm to the copyright owner if there are no restraints to the infringement;
The technical feasibility of implementing the injunction and the likelihood of interference with non-infringing material; and
The possibility of less burdensome alternatives.
Injunctions cannot be granted without providing proper notice to the OSP and an opportunity for the OSP to appear.
In order to receive safe harbor protection, service providers have to comply with certain conditions. These include designation of a copyright agent who can receive infringement notices and a notice and takedown procedure that gives copyright holders an easy way to disable a user’s access to allegedly infringing content. The service provider must adopt and implement a policy that terminates accounts of repeat infringers. The service provider must also accommodate standard technical measures. There are also provisions that allow users to challenge improper takedowns.