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Copyright Law Explained

DMCA Safe Harbor

To incentivize the cooperation by service providers to participate in the DMCA notice and takedown process, service providers that took certain steps to educate their users, cooperate with copyright owners, remove repeat infringers from there sites were granted an immunity from possible copyright infringement liability. This is referred to as the DMCA Safe Harbor.

The law grants service providers safe harbors for four types of activities:

  • Providing of networks and infrastructure;
  • Caching of infringing activities;
  • Hosting and storage of infringing activities;
  • Linking, directing and providing other tools that points users to infringing activities.

It is important to note that these safe harbors only apply when someone other than the service provider is the direct infringer (i.e., is responsible for the infringement). If the service provider itself is engaging in the infringing activities these safe harbors will not apply.

A service provider that satisfies certain threshold prerequisites and additional specific conditions applicable to some or all of the four safe harbors will be entitled to immunity from copyright infringement liability.

The threshold requirements that most service providers will need to satisfy in order to qualify for the safe harbors are:

  • adopting and implementing a policy of terminating the accounts or subscriptions of repeat infringers;
  • informing subscribers and account holders of the repeat infringer policy;
  • accommodating and not interfering with standard technical measures used by copyright owners to identify and protect their works; and
  • designating agents to receive takedown notices from copyright owners and recording those designated agents with the U.S. Copyright Office;

In addition to meeting these threshold requirements, the safe harbors for hosting/storage and for linking only apply if the service provider:

  • complies with the DMCA takedown and counter notice process;
  • prior to receiving a takedown notice, the service provider must not be aware of the infringement or of facts or circumstances that would make the infringement apparent.

To learn more about the DMCA Safe Harbor, join the alliance today—it’s free.