Digital Millennium Copyright Act Safe Harbor
Best Practice Summary

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In 1998 Congress amended federal copyright law by passing the Digital Millennium Copyright Act (the "DMCA"). As part of the DMCA, Congress passed the Online Copyright Infringement Liability Limitation Act (the "Act"). Generally, federal copyright law has the effect of prohibiting a web site from using copyrighted work without a license to do so.

However, the Act provides a "safe harbor" for web site owners, permitting web site owners to avoid monetary damages for copyright infringement resulting from the activities of their users or customers that otherwise would constitute copyright infringement. Web site owners are one category of "service providers" identified in the Act. Thus, any company operating a web site that could contain the copyrighted work of another should consider availing itself of the Act's safe harbor provisions.

There are four primary categories of service providers that can qualify for protection under the safe harbor provisions, including service providers that:

(1) transmit and route information, such as e-mail service provider or an Internet service provider (which may store material on their networks, if only temporarily);

(2) use system caching (temporarily storing copies of data);

(3) use storage systems that allow users to store information on their networks (such as a web hosting service or chat room service); or

(4) offer hyperlinks or other "information location tools" that refer hyperlinks to third parties ( such as search engines or directories of web sites which may contain allegedly infringing material).

Qualifying for Safe Harbor

In order to be protected by the safe harbor, a service provider must:

• "reasonably implement" notification to users of its policies regarding copyright infringement and the consequences of repeated infringement;
  
  
• designate an agent specifically assigned to receive and address copyright infringement complaints (see below); and
  
  
• have no knowledge of, or obtain any financial benefit from, the copyright infringement.

Designation of Agent

To qualify for the Act's safe harbor, a service provider must file a Designation of Agent must be filed with the U.S. Copyright Office. The Designation of Agent, together with a filing fee should be mailed to:

Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

DMCA Notice Posting

After filing the Designation of Agent form, the service provider should post a DMCA Notice on its web site. The notice should contain a general notice that the service provider is availing itself of the protections under the DMCA and provide instructions for anyone alleging copyright infringement arising from any content posted on or hyperlinked to the web site.

Notice and Takedown Procedure

Furthermore, a service provider can qualify for the safe harbor only if, after being advised of an alleged copyright infringement arising from content on its web site, it expeditiously removes such content that allegedly constitutes copyright infringement.

Notice of an alleged copyright infringement is given by a copyright owner to a service provider by sending a takedown notice or a "cease and desist" notice. The Act requires that a takedown notice should include, at a minimum, the following information:

(1) Identification of the copyrighted work that allegedly is being infringed.

(2) A description of the material that is claimed to be infringing or that is subject to infringing activity and sufficient information to permit easy identification of that material.

(3) A statement that the claimant has a good faith belief that there is no legal basis for using such material.

(4) A statement, under the penalty of perjury, that the information contained in the notification is accurate and that the person submitting the notice is authorized to act on behalf of the copyright owner.

(5) A physical or electronic signature and contact information of the copyright owner or a person authorized to act the owner's behalf.

The notice should be sent in writing or by e-mail to the Designated Agent of the service provider.

After receiving such a notice, the service provider is obliged to send a counter notice to the allegedly infringing user indicating that the material identified by the copyright owner has been removed from the web site and providing the such user with an opportunity to send a written "counter-notice" to the service provider stating that the material has been wrongly removed. If such user provides a counter-notice claiming that the material does not infringe copyrights, the service provider must then promptly notify the copyright owner of the user's objection. If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network.

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