DMCA Safe Harbor is once of the most important areas of copyright law as it applies to the Internet.
It is how web hosts protect themselves from infringement committed by users. It is the most common mechanism for copyright enforcement online. And it is one of the most controversial aspects of copyright law.
However, like all areas of copyright law, safe harbor is in flux. Safe harbor in 2021 may not look like safe harbor in 2016 due to court rulings and other changes.
With that in mind, here are five questions about safe harbor that are being examined and why they are important.
1: Where Are We Going with Red Flags?
Under the DMCA, there are two situations where a host can be required to remove an allegedly infringing work. The first, and most common, is when they receive a DMCA notice. The second is they are “aware of facts or circumstances from which infringing activity is apparent.”
The latter is called a “red flag” infringement. However, court rulings have almost universally favored hosts, making red flag infringements virtually non-existant. This has even included cases where sites used names such as “Illegal Dot Net”, with courts saying it wasn’t clear enough the sites involved were infringing.
The result of this was that hosts almost never encountered situations where they had to remove content without a DMCA notice, making that part of the law largely irrelevant.
However, the MP3Tunes case and other rulings may be changing this. In the MP3Tunes case, the site was found to not qualify for save harbors because of “red flag”, not “actual”, knowledge of infringement.
That ruling was just upheld by the Second Circuit, further codifying it into case law.
This shift is a potentially major one, bringing red flag knowledge back into play. This creates a worry for hosts and an opportunity for those seeking to strip away such protections.
Where Is This Heading?
This will have a bigger impact on startups than established players. But it’s clear with DMCA safe harbors, hosts need to look at whether they might have red flag knowledge. This shift isn’t a major one yet and only applies to rare cases. However, that could change with more decisions.
2: What About Modern Hosting Services?
The DMCA took effect in 1998, nearly 20 years ago. The Internet looked very different then as there was no YouTube, Facebook or Twitter. Most people still connected via dial up modems.
One of the biggest changes has been the way hosting is structured. Rather than simply being hosted on a remote server, most sites use content delivery networks (CDNs) to spread their content on servers across the globe.
CDNs make websites faster, more secure and more reliable but they also can create legal challenges. Cloudflare, for example, works as a CDN that sits between web servers and visitors. However, they’ve repeatedly refused to remove content when served with a DMCA notice, instead forwarding on the notice to the original host.
But Cloudflare’s role under the DMCA is unclear because such providers didn’t exist when the DMCA was written. There are currently several legal challenges specifically looking at Cloudflare’s responsibility under the law.
This issue extends well beyond copyright, into many other areas of law, but figuring out the responsibilities of these new middlemen is going to be crucial as the infrastructure of the internet changes.
Where Is This Heading?
A lawsuit filed in August directly looks at Cloudflare’s role in providing support for pirate sites and it’s practice of not terminating them of learning of infringements. We will likely get some crucial answers from this case, though it almost certainly won’t be the end of the litigation on the subject.
3: How Will the New Copyright Office Rules Change Things?
As we discussed previously, the U.S. Copyright Office recently announced new rules for web hosts and service providers that want to take advantage of safe harbor protection.
Previously, service providers had to submit a paper form and pay a $105 fee to be listed in the Copyright Office’s database of DMCA agents. This step is required under the law and courts have upheld it, saying that registering after an infringement does not provide protection.
However, after more than 18 years under the “interim” system, the Copyright Office is moving to a digital one in the coming years. As part of that, they are requiring all hosts and service providers to re-register their site and then to re-register every three years. The Copyright Office will also track and post information about registrations that lapse due to a failure to renew.
Fortunately, the registration fee is being dropped to just $6.
Many see this as an attempt by the U.S. Copyright Office to make securing safe harbor protection more difficult but the Copyright Office sees this as a path to modernize an archaic system and ensure accuracy of the data in the registry.
Either way, changes are coming for hosts and online service providers.
Where Is This Heading?
These changes are most likely to bite smaller online service providers and startups than key players. Google will have no issue with it, but smaller sites may. The issue is no longer the cost, which has been prohibitive for most of history, but the inevitability that some sites will forget to renew and will lose their once-secured protection. However, we’ll likely have a clue how courts are going to treat this in a bit over a year, not long after the current crop of DMCA agent registrations becomes invalid.
Copyright law, like all law, is not set in stone. Though the sands may shift slowly, shift they do. The law we have today may look very different in just a few years.
Whether it’s due to legislation, rulemaking by the U.S. Copyright Office or court decisions, the safe harbor we understand now can and will likely change. However, few areas are in the air as much as safe harbor right now.
For better or worse, this is the area of copyright law that has the most direct impact on the internet. It’s how hosts and services protect themselves from lawsuits and how creators enforce their rights. Even a small shift here could have big implications.
Let’s hope that whatever shifts might be coming are well-reasoned. While change may be inevitable, we can and should hope that the change we get comes from good intentions and well-thought-out policy.