Assessing the DMCA Safe Harbors: The Good, the Bad, and the Ugly

The Media Institute


With nearly 12 years of experience, we are now in a better position to assess the effects of the Digital Millennium Copyright Act (DMCA) Section 512 safe harbors.  At the time that Congress passed the DMCA, there was substantial concern that the risk of crushing liability for indirect copyright liability would discourage the growth of the Internet.  At the same time, copyright owners feared that blanket immunity for online activities would lead to rampant unauthorized distribution, destroying their ability to exploit their works in both offline and online markets.

Section 512 attempts to balance these competing interests by affording online service providers (OSPs) immunity from monetary liability for transmission, caching, storage, and linking so long as they satisfy various requirements.  Under Section 512(c), OSPs storing content at the behest of users must expeditiously remove such content upon notice by the owner that the material being hosted is infringing – hence the term “notice and takedown.”  Furthermore, under the “red flag” provision, the OSP loses the protection of the safe harbor if it is “aware of facts or circumstances from which infringing activity is apparent” and does not take action – even without formal notice by the content owner.  Thus, the DMCA allocates primary policing responsibility to content owners.  But OSPs bear responsibility to remove content even in the absence of formal notice to the extent that they are aware of “red flags.”  During the past two years, district courts have begun to address these issues in the context of user generated content (UGC) websites.