Who Gets DMCA Protection?
The Digital Millennium Copyright Act (“DMCA”) is something you must be familiar with if you operate a blog, chat room or interactive website. The law has two basic functions. First, it protects copyright owners by providing a mechanism to enforce their rights without having to directly sue the infringer! The DMCA allows copyright owners to notify and demand that service providers take down infringing content contained in any medium hosted by the provider. This allows the copyright holder to attempt to stop the infringement other than by making a demand and dealing directly with the actual infringer. This greatly increases the likelihood of stopping the infringement since the service provider may be obligated to act under the DMCA.
But, the second function of this law is to provide “service providers” (i.e. Internet service providers, email providers, search engines, online auction sites, host providers, chat rooms, interactive websites, news providers, etc.) with immunity from liability for copyright infringement! As I explain more below, if you fall under the definition of a service provider, you generally will be immune from liability for copyright infringement by your website users. However, there are limitations against service provider liability, which is another purpose of the DMCA DMCA Takedown Service.
The DMCA does not apply to companies located outside the jurisdiction of the United States, however.
The DMCA Protects Service Providers!
A service provider falls under one of the defined exemptions under the Act. If exempt, the provider will be shielded from any monetary damages and would receive a limited shield against any injunction (a court order stopping the illegal activity).
Here are the four categories of activities that providers must fall under to be exempt from liability:
- Transitory communications– a provider that only transmits, routs or provides connections for material coming through a given system (i.e. ISP?s). Any data that is transmitted by the provider must be done so by an automatic, technical process without the ability by the provider to select or edit the material or data. So, if the provider is able to choose what material is shown to some extent, or modify the content, the exemption will not be available. Most service providers don’t fall under this narrowly defined category.
- System caching– temporary storage of unmodified data made available by some third-party on a system or network controlled or operated by or for the service provider, done in the form of “caching”. This is used on some networks to increase network performance or to reduce network congestion (i.e. Google?s Web cache).
- Storage of content at the direction of a user of material residing on a system or network controlled or operated by or for the service provider (i.e. hosting websites or forums allowing users to post content). Under the “storage” exemption, the provider may be exempt if it does not have knowledge of an infringement (or is not aware of facts or circumstances from which infringing activity might be apparent) and does not have the right and ability to control the infringing activity. If the provider does have the right to control activity, the provider cannot receive a financial benefit directly attributable to that infringing activity.