User Generated Content: Who’s Safe?

As mentioned in an earlier post, the originators of a web presence are not guaranteed limited liability under the Digital Millennium Copyright Act (DMCA) merely because it is visiting third parties, and not the originators, who introduce infringing content onto an originator’s site.  Rather, the DMCA offers safe harbor only to qualifying service providers.

Safe Harbor: Eligibility

17 U.S.C.S. § 512(k)’s definition of “service provider” is meant to include services that only provide location service tools, as well as services providing Internet access and such tools.  Therefore, safe harbor only applies to qualifying online service providers (which, so far, includes single sponsor websites and joint operators of co-branded websites).

The DMCA defines the following four categories of safe harbor:

1)      Conduit per § 512(a) – the service provider plays the role of a ‘conduit’ for the communications of others (example:  AOL’s provision of Usenet newsgroups to subscribers)

2)      Caching per § 512(b) – the service provider serves as an intermediary between the originating site and the ultimate user (example: Google’s Web cache)

3)      Hosting per § 512(c) – the provider allows users to store information on its networks, including numerous activities beyond “providing server space for a user’s web site, for a chat room, or other forum” (examples:  video hosting / YouTube, Amazon zShops, user-generated real estate listings; eBay listings; Google Blogger Service)

4)      Linking per § 512(d) – the provider stores links to other websites, including support for Search Engines; any potential copyright infringement is occurring at the location to which the link or reference refers, without regard to whether infringement is technically deemed to occur at that location or at the location where the material is received.

Safe Harbor: Requirements

As stated in the DMCA, sections 512(c) and 512(d) have heightened requirements before liability protection adheres.  Those requirements vary depending on the service provider classification into which a web originator falls.  More on that next time.