DMCA “Safe Harbor”

December 27th, 2015

I’ve previously written about avoiding copyright infringement with images. Somewhat along the same theme, and because there can be a great deal of confusion surrounding it, today I’m going to write a bit about the safe harbor provisions contained in Section 512 of the Digital Millennium Copyright Act (DMCA).

First and foremost, the “safe harbor” provisions do not protect you from directly infringing others’ copyrighted material.

However, these provisions can shield you from liability for:
• Linking to copyright infringing material on other sites
• Copyright infringements of your site’s users

as long as you do the following:
• Have effective notice and takedown procedures
• Promptly remove content when you are notified by a copyright owner that you have infringing material
• You do not have actual or effective knowledge that the content is copyright infringing
In particular, under Section 512(c), you are not liable for monetary damages for user-generated content that infringes another copyright and under Section 512(d) you are not liable for copyright infringement that occurs when you refer or link users to an online location containing infringing material as long as:

• you are not aware of any infringing content on your site, not aware that the material you linked to is infringing and not aware of any facts or circumstances that would make an infringing activity apparent
• you do not receive any directly attributable financial benefit from the infringing activity if you have the right and ability to control such activity
• once receiving notification of claimed infringement you respond expeditiously to remove, or disable access to, that material

The key thing to remember is that “Safe Harbor” protections extend only if you merely transmit or temporarily store user-generated digital information or have links that refer to copyright infringing content. If you select or alter content you will likely be liable for copyright infringement.

For more detailed information, you can go to the following links where I found much of what I used here:
https://www.law.cornell.edu/uscode/text/17/512
https://www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/protection-infringing-material-posted-oth

* Disclosure: I’m not a lawyer. This article contains my thoughts only and is not to be considered legal advice. Consult a qualified lawyer for legal advice.