The Digital Millennium Copyright Act and Content Liability

While the rise of the Internet did not alter the basic protections provided by copyright law, it did create considerable problems for enforcement. Better personal computers and telecommunications capabilities made it much easier to copy and distribute copyrighted material, and to do so anonymously. This created huge problems for copyright owners, as well as for Internet service providers (ISPs), who could find themselves being sued over acts of copyright infringement committed by their customers.

In response to these sorts of concerns, Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. The Act addresses many issues, but most observers agree that the most significant parts of the Act are its so-called “Safe Harbor” provisions, which provide ISPs with some protection from claims of copyright infringement. Put simply, the law says that if an ISP is merely a conduit or method of transmission, it cannot be held liable for acts of copyright infringement committed by third parties on its service. For example, if a student illegally downloads an album over the Internet, the record label owning the copyright to the album would not be able to sue the company providing him with Internet access.

Important caveats apply to this protection. In order to enjoy the protection of the DMCA, ISPs must implement and inform their users of policies permitting the termination of repeat infringers. ISPs must also respond to takedown notices, which the Act provides as a remedy for copyright owners. If a copyright owner finds infringing material on an online service, the DMCA outlines a detailed process the owner can use to ask the ISP to take it down. These notice requirements are strict, however, and are a source of difficulty in DMCA lawsuits.

Although the DMCA certainly provides ISPs with some peace of mind, copyright infringement remains a persistent and widespread problem online. In a high-profile example in 2007, Viacom filed suit against online video host YouTube alleging tens of thousands of counts of copyright infringement. In its defense, YouTube claimed that as an Internet service provider, it was protected from liability by the DMCA’s safe harbor provisions. Although a U.S. District Court handed down a ruling in 2008 ordering YouTube to hand over to Viacom 12 terabytes of data regarding its users’ viewing habits, the suit remains ongoing. Although the DMCA has now been in effect for over 10 years, the Viacom/YouTube case shows that copyright infringement issues online are massive in scope and complexity, and far from settled.