Who and What the DMCA Protects

Though the Digital Millennium Copyright Act (DMCA) is a multi-part law with three significant elements, the name is synonymous with the notice and takedown system.

For most individuals, a DMCA takedown (or similar) is the most likely copyright repercussion. Even those who don’t post online have encountered videos and other content removed by DMCA notices.

But this raises a series of questions: Who does the DMCA Protect? What does it protect them from?

Considering Google has processed over 11.6 billion URLs requested for delisting, there must be some benefit to them. So what exactly is that benefit?

The answer is legal certainty and protection from potentially significant liability.

Who the DMCA Protects

To be clear, the DMCA is a United States law. However, many other countries have very similar laws protecting the same entities. Still, we will be focusing on the DMCA in this post, and there may be differences in other countries.

Section 512 of the DMCA outlines the notice-and-takedown regime. The law lists four categories of entities for which it limits liability.

1. Transitory Digital Network Communications
2. System Caching
3. Information Residing on Systems or Networks At the Direction of Users
4. Information Location Tools

The first two aren’t a part of the notice-and-takedown regime. Though they have other obligations, such as internet service providers being required to terminate the accounts of repeat infringers, these are not DMCA notices, as most know them.

Instead, the notice-and-takedown regime focuses on the last two groups.

Though the terminology is both archaic and confusing, it can be summarized as protecting hosts and search engines.

Hosts, for this purpose, include any site where users upload content to be shared publicly. This includes large sites/services like TikTok, Facebook and YouTube, but it also includes smaller forums, sites with comment sections and more.

For information location tools, this includes any site or service that links to third-party websites. While this could include any site that provides links, it primarily impacts search engines. This is why Google, Bing and other search tools have ways to submit DMCA notices.

But what protections do they get for compliance? Some very significant ones.

What it Protects Them From

Under US law, providers of “interactive computer service(s)” are not normally treated as the speakers or publishers of information uploaded by users. These protections are spelled out in Section 230 of the Communications Decency Act (CDA).

This protection is extremely broad. For example, it protects social media sites from being held liable for libel users commit. Without this protection, every post, video, photograph or comment would be a potential legal nightmare.

However, the CDA carved out a handful of exemptions. One of those was intellectual property, including copyright. Hosts and search engines must take additional steps to protect themselves against infringing users.

Those steps include appointing a DMCA agent to receive copyright notices, removing or disabling access to content “expeditiously” after receiving a notice and having a policy to terminate repeat infringers.

Hosts can be liable for secondary copyright infringement without this protection, even if they are unaware of the infringement. Several groups target hosts lacking a DMCA agent for this very reason.

Hosts and search engines protect themselves from this liability by completing the required paperwork and following the process. Users who feel a DMCA notice falsely or incorrectly targeted them can file a counternotice. If the original filer did not take legal action, hosts can restore the content without losing protection once they wait 10 and 14 business days after the counternotice.

Filing a counternotice does not guarantee a host will restore the work. Most hosts have terms of service that allow them to choose not to host content for any reason. Still, the host will not be liable if they follow the procedure when restoring the work.

Bottom Line

In the end, the answer to the titular question is simple: The DMCA protects hosts (of all shapes and sizes) and search engines from being liable for infringement undertaken by users or third-party sites.

Obviously, this also benefits creators and rightsholder. They get a relatively streamlined and inexpensive process to remove allegedly infringing content. Though there are legitimate debates about this process’s effectiveness and fairness, that is the intent.

If you are wondering whether you should have a DMCA agent, it depends on whether you accept user content. This can include comments, forum posts, or other interactive elements.

If you do, it’s probably wise. Registering a DMCA agent with the US Copyright Office is simple and inexpensive. However, if you would prefer to have someone else do it, I offer this service at CopyByte, and there are plenty of others who do the same.

Even if the risk is low, it’s probably worth making sure you’re covered. A few dollars every three years can prevent hundreds or thousands of dollars in liability. While the system has flaws, ignoring it, especially if you host user content, is an unnecessary risk.