October 26, 2021

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Safe harbor provision under the Digital Millennium Copyright Act

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This article is written by Sohini Goswami, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Smriti Katiyar (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Literature has always been a tool to impart entertainment as well as life lessons. Hence, it is imperative to protect its origin and authenticity. Copyright law is a branch of law that ensures that literature in the literary form, audio as well as video form, is not exploited by people who are not the original creators of intellectual property. Copyright law like most Intellectual Property laws is a territorial right. In India, Copyright law is governed by the Copyright Act, 1957. In the United Kingdom, it is governed by the Copyright, Designs and Patents Act 1988 and in the United States, it is governed by the Copyright Act, 1976. However, with the boom of social media, there has been a need for a separate law to deal with copyright on digital platforms. The Digital Millennium Copyright Act followed in the United States, comes into place in this regard. 

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Through this article, we will talk about the Digital Millennium Copyright Act, its role in copyright protection, different titles under it, and light will also be shed on one of the most unique features of the DMCA which is the Safe Harbor provision and everything that is there to know about this provision.

The Digital Millennium Copyright Act established in 1998, is the copyright law followed in the United States. It was implemented as a result of two treaties- the WIPO Copyright Treaty and the WIPO Performances and Phonograms treaty. It also lays down laws to combat copyright infringement of all sorts, remedy for such, and as well as protection. A part of it also focuses on the protection of designs. This law specifically applied and was limited to online service providers.

The DMCA is split into five headings:  

  1. Under this heading, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, is sheltered. It works towards the goal of implementation of the WIPO accords. 
  2. The “Online Copyright Infringement Liability Limitation Act,” limits online service provider’s liability for copyright infringement when they engage in certain activities. 
  3. The “Computer Maintenance Competition Assurance Act,” exempts from creating a copy of a computer program by activating a computer for maintenance or repair from the law. 
  4. Contains six miscellaneous provisions, relating to the Copyright Office’s functions, distance education, the Copyright Act’s exceptions for libraries and ephemeral recordings, “webcasting” of audio recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of motion pictures right transfers. 
  5. The “Vessel Hull Design Protection Act,” establishes a new level of protection for the vessel hull designs.

In this article, we will primarily talk about an aspect of Heading II- The safe harbor provision laid down by the Digital Millennium Copyright Act.

The safe harbor options allow immunity against;

Copyright claims under the United States law when the source of a probable threat to the copyright protection is the conduct of the Online Service Producer’s end users. 

Hence, the safe harbor valve does not protect against-

  • Non-copyright claims, such as trademark infringement, unfair competition, rights of publicity, invasion of privacy, defamation, etc.
  • Copyright claims under foreign laws.
  • The Online Service Provider’s direct infringing activities, or
  • The Online Service Producer acting in concert with users to create infringements.

However, although the DMCA does not offer legal protection against foreign or non-copyright claims, it is common for Online Service Producers to offer a DMCA like notice and a takedown regime for other intellectual property claims and for concerns that might arise under foreign law. Holders of other rights and are often willing to use such a process instead of filing a lawsuit.

Safe harbor, in simple words, is the immunity available to right holders, content creators as well as online service providers against copyright infringement on the Internet. The objective of this provision is to ensure that no one except the real infringer should be asked to indemnify.

There are four safe harbors under the DMCA.

Storage Safe Harbor

User’s material that is directed to be kept or made available on the Online Service Producer’s Website may be infringing. This category includes the majority of websites and online services. Hence, it protects Online Service Producers from the liability that comes with it.

Transmission Safe Harbor

When infringing material is sent by end-users or others, the infringing material is transmitted, routed, or connected to. Hence, it protects Online Service Providers especially telecommunication companies from such liability.

Caching Safe Harbor

It shields the service provider from liability for storing infringing material from a third party on a system or network controlled or administered by or for the service provider.

Information Location Tools Safe Harbor

By employing information locating tools, you may be liable for referring or linking users to an online location containing infringing material or infringing conduct. Hence it protects the Online Service Providers from such liability.

For seeking the benefit of this immunity, one must qualify as a service provider. For purposes of the first limitation, relating to transitory communications. A service provider 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.”

For purposes of the other three limitations, “service providers” is more broadly defined in Section 512(k)(1)(B) as, “a provider of online services or network access, or the operator of facilities therefore.”

Additionally, to be eligible as a service provider, one also needs to;

  1. Adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers.
  2. Accommodate and not interfere with standard technical measures.

The initial process of setting up the safe harbor for the storage, caching and information location tools safe harbors are as follows:

a. The Online Service Provider must designate an agent for service of copyright claims-

i) On their website, and 

ii) In an online filing with the United States Copyright Office.

b. Write, adopt, and post on its website a “repeat infringer policy”.

Moving forward, for the continuing effective gain from the safe harbor immunity, The online service providers must;

i) Manage the notice and takedown notices, and

ii) Reasonably implement its repeat infringer policy.  

Such guidelines are laid down by the DMCA in order to ensure that a uniform compliance procedure is followed by all the online service providers to avoid any inconvenience.

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Once, it has been recognized that there is content that infringes someone’s copyright on the platform of the online service provider, the process of its takedown is initiated, the first step is sending a notice of infringement to the infringer.

Concerning three safe harbors, the storage safe harbors, the information location safe harbor, and the caching safe harbor, the DMCA requires that the online service providers promptly remove or disable access to infringing materials when copyright holders give DMCA compliant notice of infringement.

Removing or disabling access to infringing content applies to the storage safe harbor. The information location tools safe harbor and the caching safe harbor have similar requirements. For the information location tools safe harbor, the online service providers must expeditiously remove or block access to links to infringing matters. In designated circumstances, the caching safe harbor requires that the online service providers remove or block access to caches containing infringing matter. There is no takedown requirement for the transmission safe harbor.

Under the DMCA, there are two phases of the takedown process for the storage safe harbor;

  1. Notice Take-down: To begin, an endless supply of a DMCA-agreeable notification of encroachment, the specialist co-op must “speedily” eliminate or block admittance to the purportedly encroaching matter. (§512(c)(1)(C).) The DMCA doesn’t characterize “quickly,” and any assurance or on the other hand judgment on what speed is adequate is exceptionally logical. On the off chance that the OSP eliminates or blocks access, on a basic level it ought to have no liability to the copyright holder whether the copyright guarantee is eventually maintained. 

In the event that the notice of infringement is defective, the online service provider may have an obligation to advise the copyright holder.

  1. Counter-notice procedure: The DMCA incorporates a technique for giving a specialist organization’s end-clients a chance to react to a take-down see and have their substance re-established – with the OSP being insured against liability. As we talk about beneath, this piece of the notice-and-take-down measure is discretionary, however here’s how it works. At the point when an OSP eliminates or hinders admittance to end-client content, the OSP may simultaneously give notice to the end-client and offer the end-client a chance to stop a counter-notice questioning encroachment. On the off chance that the counter-notice conforms to the prerequisites of the DMCA ((§512(g)(3)), the OSP must –
  1. Promptly send a copy of the counter-notice to the complainant,
  2. Inform the complainant that the service provider will restore the challenging matter in ten business days, and 
  3. Put challenged back up in ten to fifteen business days unless the copyright owner notifies the online service provider that the copyright holder has filed a lawsuit against the end-user who posted the allegedly infringing content. 

On the off chance that the OSP follows these methodology concerning counter-sees, it will have no liability to the copyright holder for having reestablished the difficult matter on the occasion the copyright holder neglects to record suit. On the off chance that the proprietor of the copyright sues, the specialist co-op will have no liability to one or the other party, and the claim ends up.

Further that a specialist co-op gives this alternative to its end-clients, the DMCA safeguards the OSP from potential cases by end-clients claiming that the OSP improperly eliminated or obstructed admittance to their substance. This “protection” has restricted importance since the specialist co-op can almost certainly secure itself adequately through terms of utilization that give adequate care to end clients or potentially bring down their entries.

In the circumstance where you are the owner of a copyright, you have to lodge a complaint with the DMCA for a notice of infringement of your copyright. 

Requirements of such notice are:

  1. Identification of the copyrighted work (or a representative list of such works) that the copyright holder asserts has been violated; 
  2. Identification of the allegedly infringing material, as well as sufficient information to allow the OSP to find it on its website;
  3. The copyright holder or its agent’s contact details; 
  4. A statement that the complainant believes in good faith that the copyright owner, its agent, or the law have not permitted the use of the allegedly infringed item; and
  5. A statement that the above information is correct and that the complainant is the owner of the copyright, or is authorized to act on behalf of the owner of the copyright, or is the owner of one of the exclusive rights under copyright law that is allegedly infringed following part under penalty of perjury.
  6. The copyright holder’s or its agent’s physical or electronic signature.

The DMCA is reasonably clear about the service provider’s obligation concerning users who repeatedly infringe copyrights; to be eligible for the safe harbor, the service provider must “adopt and reasonably implement, and inform subscribers and account holders of, its policy that provides for the termination in appropriate circumstances of subscribers and account holders, who are repeat infringers.”

The resolution necessitates that the rehash infringer strategy is sensibly executed. At any rate, this implies you should have a working email framework so that notification of guaranteed infringement is gotten by the fitting individual for handling. Additionally, it shows that you should not set up your framework such that copyright holders are hindered from gathering infringement data (however it isn’t too clear what this implies). Many specialist co-ops utilize a “three strikes you’re out” standard, ending clients on the third copyright notice.

Whatever strategy an OSP chooses, we strongly advise that it have an internal set of documented procedures for dealing with repeat infringers. These do not have to be public, but they should outline your grounds for dismissing users. These should be guidelines that are both flexible and overly onerous to follow. Adopting an ambitious policy that is marvelous, but has stringent procedures you are unlikely to follow in practice is a bad idea! When someone sues you and alleges you didn’t follow your protocols, this will only make things worse. It is preferable for the guidelines to simply indicate a number of flexible criteria that you can evaluate when deciding on termination, rather than following a set of procedural processes. 

On May 21, a report was submitted by the US copyright office to analyze the effectiveness of the DMCA’s guidelines, especially concerning Section 512 of the DMCA, providing safe harbor to Online Service Providers and its right holders. Though the Online Service Providers and its advocates have given their verdict that this provision has been tremendously helpful for adhering to their issues, a similar kind of enthusiasm has not been witnessed from the content creators and the right holders. Despite the regular submission of a huge number of take-down notices and counter-notices, this provision of the DMCA has not been able to bridge the gap between the copyright infringement of content on the internet and the cases reported. If statistics come into play then it can be seen that only 1/4th of the infringement cases are reported and resolved, which is a scary ratio. Hence it is visible that the DMCA needs to undergo certain changes to incorporate and function as a tightly knit legislation towards online copyright infringement. 

  1. https://uk.practicallaw.thomsonreuters.com/2-507-6908?transitionType=Default&contextData=(sc.Default)&firstPage=true 
  2. https://www.copyright.gov/legislation/dmca.pdf 
  3. https://www.congress.gov/bill/105th-congress/house-bill/2281

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