DMCA Safe Harbors

Overview
Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 in an effort to adapt copyright law to an evolving digital environment. The expansive legislation is divided into five titles, the second of which is the focus of this article.

Title II of the DMCA amended chapter 5 of the 1976 Copyright Act, and created a new Section 512 to limit the liability of service providers for claims of copyright infringement relating to materials online. This safe harbor immunity is available only to parties that qualify as a “service provider” as defined by the DMCA, and only after the provider complies with certain eligibility requirements. In exchange for immunity from liability, the DMCA requires service providers to cooperate with copyright owners to address infringing activities conducted by the providers’ customers.

Subsection 512(h) obligates service providers to divulge to copyright owners the identity of a subscriber suspected of copyright infringement. The subsection also provides a detailed procedure that a copyright owner must follow in order to obtain a subpoena from a federal court compelling the service provider to reveal the identity of the suspected infringing user.