In 1998, the Digital Millennium Copyright Act (DMCA) was signed into law for the purpose of adapting copyright law to a new digital climate. The DMCA consists of five titles. Title I implements the World Intellectual Property Organization (WIPO) treaties. Title II limits the liability of online service providers against copyright infringement if they abide by the safe harbor guidelines. Title III permits copies of computer programs for the purpose of repairing a computer. Title IV contains six miscellaneous provisions which 1) explain and increase the duties of the Copyright Office, 2) exempt digital transmission recordings, 3) facilitate distance education, 4) expand the archiving methods allowed by libraries, 5) create an exception for web-casting, and 6) address concerns about the payment of actors, directors and writers when movies are exploited. Title V protects boat hull designs.
One of the DMCA’s most significant changes protects service providers from copyright liability stemming from the infringement by their users. This protection, called a “safe harbor,” only applies to those who qualify as a “service provider” as defined by the DMCA, and only if specific eligibility requirements are met. The safe harbors obligate service providers to assist copyright owners in the prevention of infringing conduct.
The safe harbors relate to four separate service provider operations, including: 1) transitory communications, 2) system caching, 3) storage of information on systems or networks at direction of users, and 4) information location tools. The limitation for transitory communications offers protection in circumstances where the provider merely transmits digital information at someone else’s request. The safe harbor for system caching limits the liability for retaining copies of material that has been made available by someone other than the provider and transmitted to a subscriber. The purpose of system caching is to reduce the service provider’s network congestion. The limitation for the storage of information on systems or networks at the direction of users covers infringing material on websites hosted by the service provider’s systems. The safe harbor for information location tools protects against copyright infringement claims based on linking users to a site that contains infringing material.
Qualification for each safe harbor provision is subject to several detailed conditions. One condition common to three of the four categories is the requirement that the service provider promptly remove unauthorized material, upon proper notification by the copyright owner. This “take down” obligation does not apply when the service provider operates as a passive conduit of information.
In the landmark case, Hendrickson v. eBay, eBay was shielded from liability under the DMCA safe harbor provisions. The court found eBay was not liable for copyright infringement when pirated DVD copies of a Charles Manson documentary, called “Manson,” were offered for sale on its auction website. The plaintiff failed to provide eBay with proper notice, so eBay was under no obligation to remove the allegedly infringing material.
The court denied safe harbor protection to Napster in A & M Records Inc. v. Napster, Inc. on the grounds that it did not meet the eligibility requirements of the DMCA. Napster facilitated the sharing of music files over the Internet, without the authorization of copyright owners. The court ruled that Napster did not qualify for the safe harbor, because the infringing material was not exchanged through Napster’s servers, but over the Internet. Furthermore, Napster did not satisfy the eligibility requirement, because it did not have a formal termination policy in place.
Google is currently defending itself against a copyright infringement claim under the protection of the DMCA. Google maintains that YouTube, a video-sharing website, is an Internet service provider, protected by the DMCA’s safe harbor provision. YouTube risks losing that protection if the plaintiff, Viacom proves YouTube employees knew the uploaded videos were pirated.
If you are interested in additional information on the topic of the Digital Millennium Copyright Act, or if you have any questions, please contact a K&K attorney. K&K offers an array of services in the areas of intellectual property including patents, trademarks, copyrights, trade secrets as well as intellectual property litigation and enforcement. Further information on these and other services is available at www.kk-llp.com.