Qualifying for DMCA Safe Harbor Protection

Much has been said recently about the qualifications of a website receiving “safe harbor” protection under the Digital Millennium Copyright Act. Receiving this protection is vital for any start up user generated content website, because the typical layout for this type of website is that a user uploads the content where the user may upload copyrighted material and potentially subject the website to copyright infringement liability. By way of example, imagine your little brother uploading an Adele or LMFAO music video to YouTube. That is textbook copyright infringement, and could open YouTube up to liability if they do not satisfy the requisites for safe harbor protection.

First, a user generated website must be a service provider. The definition of service provider is “a provider of online services or network access, or the operator of facilities thereof.” It is a very broad definition, and nearly all websites that host material will fall into this category.

Next, a service provider must then satisfy certain “conditions of eligibility,” such as the adoption and reasonable implementation of repeat infringer policy that provides for the termination in circumstances of account holders access to network and must accommodate standard technical measures used by copyright owners to identify works.

Third, a service provider must fall into four categories of safe harbors,(1) transitory digital network communications, (2) system caching, (3) information residing on systems or networks at the direction of users, and (4)information location tools. For our purpose, the third of these “information residing on systems or networks at the direction of users,” is where user generated content websites are covered.

Fourth, the service provider must comply with safe harbor provisions. Very broadly stated, this means the service provider must remove user uploaded materials that infringe on someone else’s copyright when the service provider has specific knowledge that there is materials on the site that infringe another’s copyright. It is important to note, service providers do not have to police their own system and hunt down potential violations. They only have to remove material once they gain specific knowledge, and they must do so expeditiously.

Lastly, the service provider must designate an agent to receive notifications from copyright holders concerning potential infringing content.

There are additional details a service provider must follow (and you should contact an experienced intellectual property attorney to go over administrative plans for your site to ensure you have the best argument as possible for safe harbor protection), but these are the main points a user generated site must follow while developing their business model behind the scene.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.