DMCA Safe Harbors De-Coded: 17 U.S.C. Section 512 Re-Organized in More Logical Order

by Fenwick & West LLP
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Organizationally speaking, the Safe Harbors part of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, doesn’t make much sense. Provisions governing related matters are often scattered through the section, and because the order is not logical, it is difficult to recall where important provisions are to be found. For example, sub-section (i) is headed “Conditions for Eligibility.” But they aren’t the only conditions; others are stated in subsections (a)(1) through (5), (b), (c)(1), and elsewhere. The contents of a valid take-down notification are set forth in sub-section (c)(3)(A). But the requirements for a valid counter-notice are not found until a thousand words later, in sub-section (g)(3). The important provision that online service providers have no duty to monitor for infringing content is stated in a sub-section headed, “Protection of Privacy.”

This interactive reworking fixes all that. DMCA Safe Harbors De-Coded reorganizes and imposes logic on the organizational mess that Congress gave us, with links in the Table of Contents and throughout the document that jump you where you need to go.

TABLE OF CONTENTS:

I. SCOPE OF SAFE HARBORS: OTHER DEFENSES STILL AVAILABLE

II. SCOPE OF IMMUNITY UNDER THE SAFE HARBORS

A. DEFINITION OF MONETARY RELIEF

B. IMMUNITY FROM MONETARY OR NON-INJUNCTIVE EQUITABLE RELIEF FOR COPYRIGHT INFRINGEMENT CLAIMS

C. LIMITED IMMUNITY FOR INJUNCTIVE RELIEF ARISING FROM COPYRIGHT INFRINGEMENT CLAIMS

D. IMMUNITY FROM CLAIMS FOR TAKING DOWN OR REPLACING MATTER CLAIMED TO INFRINGE OR APPARENTLY INFRINGING

III. CONDITIONS FOR SAFE HARBORS

A. NO DUTY TO MONITOR

B. WHO QUALIFIES FOR THE SAFE HARBORS: DEFINITIONS OF “SERVICE PROVIDER”

C. REQUIRED FOR ALL SAFE HARBORS: REPEAT INFRINGER POLICY AND “STANDARD TECHNICAL MEASURES”

D. ADDITIONAL CONDITIONS FOR IMMUNITY FROM COPYRIGHT INFRINGEMENT CLAIMS FOR EACH SAFE HARBOR

FOR THE TRANSITORY DIGITAL NETWORK COMMUNICATIONS SAFE HARBOR (512(a))

FOR THE SYSTEM CACHING SAFE HARBOR (§512(b))

FOR THE SYSTEMS STORAGE SAFE HARBOR (§512(c))

- [ACTUAL KNOWLEDGE]

- [AWARENESS INFRINGEMENT IS APPARENT (RED FLAG TEST)]

- [EXPEDITIOUS TAKE-DOWN]

- [DIRECT FINANCIAL BENEFIT / RIGHT AND ABILITY TO CONTROL]

- [AGENT TO RECEIVE INFRINGEMENT CLAIMS]

- FOR THE INFORMATION LOCATION TOOLS SAFE HARBOR §512(d))

E. NON-COMPLIANT TAKE-DOWN NOTICE NOT TO BE CONSIDERED REGARDING ACTUAL KNOWLEDGE OR RED FLAG AWARENESS UNDER § 512(c) OR (d)

F. CONDITIONS FOR IMMUNITY FROM CLAIMS FOR TAKING DOWN OR REPLACING MATTER CLAIMED TO INFRINGE OR APPARENTLY INFRINGING

IV. NOTICE & TAKE DOWNS PROCESS

A. FOR IMMUNITY UNDER §§ 512(c) OR (d) FROM COPYRIGHT INFRINGEMENT CLAIMS, SERVICE PROVIDERS MUST RESPOND TO TAKE-DOWN NOTICES; REQUIRED CONTENTS OF TAKE-DOWN NOTICE

B. FOR IMMUNITY FROM CLAIMS REGARDING RE-POSTING OF REMOVED/DISABLED MATTER, MUST FOLLOW PROCESS OF § 512(g)(2)-(3); REQUIRED CONTENTS OF COUNTER-NOTICE

C. LIABILITY FOR FALSE NOTICES OR COUNTER NOTICES

V. MISCELLANEOUS

A. SUBPOENAS; CONSTRUCTION

B. SPECIAL TERMS THAT APPLY TO NONPROFIT EDUCATIONAL INSTITUTIONS

Please see full Newsletter below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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