The Digital Millennium Copyright Act, 17 U.S.C. § 512, (“DMCA”) provides Internet communications service providers, including website operators, with immunity from copyright infringement liability for, among other things, infringing material posted on its sites by its users, provided the online service provider implements a procedure that allows copyright holders to report alleged infringement of its protected work on its website or through its service.
The type of “service provider” exempted from copyright infringement liability under the DMCA is defined as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received” or “a provider of online services or network access, or the operator of facilities therefor.” In practice, service providers are the conduits for transmitting digital online communications among users and include telecommunications companies or ISPs like Verizon or Comcast as well as the companies that provide online services and networks, including websites. It’s a broad definition.
To avoid liability for copyright infringement, a service provider must not have prior actual or constructive knowledge of the infringing material, not “receive a financial benefit directly attributable to the infringing activity,” have a notice and takedown procedure in place for reporting infringing material, and, where appropriate, terminate repeat infringers accessing the site or service. Here are general guidelines to remain protected by the DMCA safe harbor:
An Note on Designated Agents: The Copyright Office introduced an electronic directory of DMCA designated agents on December 1, 2016, and subsequently required any service provider with a designated agent prior to November 30, 2016 to re-register its agent through the new online system by December 31, 2017 to continue its protection under the DMCA safe harbor. For more on this change and its implications, see our Legal Alert for Online Service Providers.
Unless a service provider has staff trained in evaluating and responding to notice and takedown requests, they should seriously consider involving legal counsel to make those determinations because, as discussed below, non-compliance or otherwise lackadaisical attention to claims of copyright infringement can cause service providers to blow their DMCA safe harbor protection and face costly claims of contributory copyright infringement.
The DMCA safe harbor provisions require that service providers “adopt and reasonably implement” a policy for terminating the accounts of any “repeat infringers” where appropriate. What’s sometimes troublesome is that the DMCA does not define who is a “repeat infringer” and what the “appropriate circumstances” are that would require the service provider to terminate an infringer’s access, so service providers have some discretion in setting and implementing their own policies. For example, a service provider’s repeat infringer policy might be to notify and terminate any alleged infringer’s account or access if the service provider has received and acted on more than, let’s say, two DMCA-compliant Notices of Claimed Infringement concerning that user. Once a service provider receives a Notice of Claimed Infringement, the law considers the service provider to then have actual knowledge of multiple instances of infringing content on its site or through its service and, therefore, must act to remove it and prevent repeat offenders, or risk losing its DMCA protection from copyright infringement liability.
The risk of non-compliance with formal DMCA requirements can be costly. In December 2015, Cox Communication lost its DMCA immunity and was found guilty of willful contributory copyright infringement and ordered to pay a $25 million judgment to music publisher BMG for disregarding infringement notices and its repeat infringer policy against users who freely passed copyrighted music through its system. According to The Hollywood Reporter, “Although Rightscorp detected 1.847 million instances of infringement and collected more than 150,000 copies of copyrighted works downloaded directly from Cox subscribers, according to testimony presented at trial, there was 1,397 copyrighted works in contention in the lawsuit. That means that the $25 million verdict amounts to about $18,000 for each song infringed.” An appeal to the U.S. Court of Appeals for the Fourth Circuit is currently pending.