Your DMCA Safe Harbor Questions Answered

Do you need the answer right now to one particular question about the DMCA and its (so-called) “Safe Harbors”? Here you go! But be warned: we’re painting with a broad brush, so you will have to go further—including seeking legal advice—for more precise and nuanced answers for your actual situation. This guide is not legal advice.

The Digital Millennium Copyright Act of 1998 (the “DMCA”) sought to balance the interests of copyright holders who were afraid of the large scale copyright infringement that they anticipated with the onset of user-submitted content and the interests of owners and operators of Internet websites who wanted to allow their users to post content and communications without the operators being held liable for possible infringing acts of some of their users.

The DMCA’s solution: copyright law would treat online service providers (“OSPs”) as innocent middle-men in the underlying disputes between copyright holders and users who posted infringing content—provided the OSPs met certain conditions. The DMCA’s “safe harbor” regime offers immunity to claims of copyright infringement if (among other requirements) online service providers promptly remove or block access to infringing materials after copyright holders give appropriate notice.

But the devil is in the details. To flag one key point: cribbing a DMCA policy from another website and posting it on yours is not enough; if that is all you do, you will not avail yourself of the safe harbor.


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