Copyright © 2010 Chip Cooper

The Digital Millennium Copyright Act (DMCA) provides a "safe harbor" from strict liability for copyright infringement to online service providers that satisfy its requirements.

A June, 2010 ruling by a U.S. District Court in New York in favor of YouTube established an important precedent for blog sites for avoiding strict liability for copyright infringement by blog posters.

The DMCA

Online service providers such as blog sites are vulnerable to claims for copyright infringement if visitors post infringing material on their websites, even if the service providers are unaware that the material is infringing. This unfortunate result - that's often quite surprising to blog site webmasters who are unfamiliar with copyright law - is due to the strict liability principles of the U.S. Copyright Act.

Signed into law in 1998, the DMCA protects online service providers from strict liability for copyright infringement by their users if they:

* post a specific DMCA notice prominently on their websites,

* register with the US Copyright Office, and

* promptly block access to, or take down, allegedly infringing materials if they receive a notice from a copyright owner claiming infringement, or if the service provider has "actual knowledge" that it is hosting infringing material or if the service provider is aware of facts or circumstances that should make it "readily apparent" that there is infringing activity.

This protection by DMCA is known as a "safe harbor"; it completely protects the service provider from vicarious liability for copyright infringement.

The YouTube Case

YouTube's online video sharing service permits users to post videos to the YouTube site which then can be accessed and viewed by anyone who visits the YouTube site.

Viacom International sued YouTube alleging that YouTube was liable for copyright infringement of numerous videos for which Viacom owned the copyrights. Viacom argued that YouTube was aware that some of its users posted infringing videos on the YouTube site and that this awareness disqualified YouTube from the safe harbor protection of DMCA.

The YouTube case involved the third bullet point above - whether YouTube's general knowledge that some of its users post infringing content on the YouTube website can amount to either:

* "actual knowledge" of infringement, or

* qualify to make it "readily apparent" to YouTube that there was infringing material on the YouTube website.

The court rejected Viacom's argument and ruled that YouTube was not disqualified from the DMCA safe harbor. Specifically, the court found that YouTube's general awareness of infringing activity by some of its users did not rise to the level of "actual knowledge" or knowledge that would make it "readily apparent" which videos were infringing. The court noted that YouTube had removed allegedly infringing videos promptly after receipt of notice sufficient to identify specific infringing videos. Finally, the court ruled that YouTube had no general obligation to police its website for infringing videos and to determine whether specific videos were infringing.

Conclusion

In general terms, the key rulings of interest to blog sites were that:

* YouTube had no general obligation to police its site for infringing videos, and

* that YouTube's general knowledge of infringement, but not of specific infringing videos, was insufficient to disqualify YouTube from the DMCA safe harbor.

Blog site webmasters should be aware, however, that there are specific requirements that must be satisfied in order to take advantage of the DMCA safe harbor. It's essential that these specific requirements be satisfied in order to qualify for DMCA?s valuable protections.