Posts Tagged ‘DMCA’

DMCA CopyrightBy: Bill Harding

To remain eligible for safe harbor under § 512(c), an online service provider (OSP) who allows posting of user-generated content (UGC) must document, implement, and communicate its policy for monitoring, blocking, and removal of infringing content.  The OSP also must be prepared to restore removed material correctly in the event that a takedown notice is successfully challenged by a poster.   A notice – counter notice mechanism offers a conservative approach to balancing respect for fair use and the First Amendment with the rights of copyright holders without injecting the company into an infringement suit between the parties in conflict.


pointing-fingersFor websites that allow user generated content (UGC), the online service provider (OSP) and the copyright holder share responsibility for combating infringement.  Part of that responsibility includes properly notifying each other with regard to alleged infringement.

If a copyright owner or other party complaining of infringement fails to fully comply with the elements of notification required by § 512(c)(3) of the the Digital Millennium Copyright Act (DMCA), that notification may not be considered in determining whether the “Hosting” service provider had actual or red flag knowledge of the infringing activity.   


DMCA-Takedown-NoticeThe Online Copyright Infringement Liability Limitation Act (OCILLA), passed in 1998 as Title II of the Digital Millennium Copyright Act (DMCA), preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment. The DMCA notification procedures place the burden of policing copyright infringement – identifying the potentially infringing material and adequately documenting infringement – squarely on the owners of the copyright, rather than shift a substantial burden from the copyright owner to the provider.  For service providers who support user generated content (UGC), the §512(c) safe harbor requires implementation of a “notice-and-takedown” policy, and communication of that policy to the users of the service provider’s system or network.  After being notified of claimed infringement, the service provider must expeditiously remove or disable access to the material.


My last post related how Online Service Providers (OSPs) are subject to disqualification for § 512 safe harbor from copyright infringement liability based on actual or red flag knowledge of user-generated content (UGC) containing infringing material.  Another disqualifier for safe harbor is the OSP’s control of and benefit from the infringing act.

Control and Benefit

A service provider may lose protection under the § 512(c) and § 512(d) safe harbors if a court finds it both able to control the infringement and in receipt of financial benefit directly attributable to the infringement.  If a defendant OSP does not have the right and ability to control the alleged infringing activity, a court need not engage in the financial benefit analysis.


As related in my last post, DMCA sections 512(c) and 512(d) have heightened requirements before copyright infringement liability protection adheres to service providers who support user generated content (UGC). The requirements for the four categories of safe harbors under § 512 can be summarized as follows:

Safe Harbor

Provider Monitoring Red Flag Test Notice/Takedown

(a) Conduit

ISP & OSP not required not applicable not applicable

(b) Caching

OSP not required not applicable

does apply

(c) Hosting (UGC) OSP not required does apply

does apply

(d) Linking (search) OSP not required does apply

does apply

Let’s cover one key element of these requirements now:  Knowledge.


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