DMCA Safe Harbor- An Essential Tool for Online Service Providers

If you allow the posting of third party content to your website, you should consider acquiring safe harbor protection through a DMCA agent with significant knowledge and experience in DMCA law. Securing a DMCA agent can potentially shield online service providers from expensive, lengthy, and complex copyright infringement lawsuits.

The DMCA safe harbor provisions allow certain online service providers who comply with specified statutory prerequisites to take advantage of significant limitations on monetary liability for copyright claims based on material posted by third party users on the service provider’s network. As an online service provider, you must comply with specified statutory prerequisites if you want to receive safe harbor provisions. The DMCA defines a "service provider" as an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received, or, a provider of online services or network access, or the operator of facilities thereof. Essentially any entity that provides end users with web space, bandwidth, or access to the Internet could be considered a service provider under the DMCA. The types of business models covered by this definition range from ISP's, to online dating sites, to adult tube sites.

It should be noted that the law does not require online service providers to comply with any of the safe harbor provisions of the DMCA. Compliance with DMCA safe harbor provisions is completely optional, but the benefits of compliance cannot be ignored, as a practical matter. Without DMCA safe harbor protection, online service providers are completely vulnerable to traditional copyright claims based on direct, contributory and/or vicarious copyright infringement liability theories. Therefore, DMCA compliance comes down to a business decision – one that can be very important if the OSP is ever sued for copyright infringement based on user generated content. Consulting with legal counsel who has extensive knowledge of DMCA law and 1st Amendment Law can ensure online service providers that they are properly protected under DMCA safe harbor.