What are the Safe Harbor Provisions?

By the safe harbor provisions, the DMCA claims that it does not hold content hosts accountable for content that users post on their site. In exchange, the sites must provide takedown procedures and remove anything ruled infringing. This would “protect service providers from monetary liability based on the allegedly infringing activities of third parties.” In theory, these provisions would keep content hosts safe while facilitating takedowns.

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Are the Safe Harbor Provisions effective?

No. The idea fails in practice. For one thing, hosts can be found liable through “vicarious infringement.” In A&M Records, Inc. v. Napster, Inc., Napster was found guilty of vicarious infringement since “their platform allowed for ‘repeated and exploitative’ copying…even though no sales were taking place.” Their site was taken down even though the company itself did not actually upload or sell any of the infringing files; the users who uploaded the files got off without punishment. In this case, the liability for the infringement was on the users, but despite the DMCA stating otherwise, Napster was found guilty of piracy and shut down due to their failure to police their own content. In this way, the burden falls on file hosts to monitor all their content and file their own DMCA takedowns, or else face the risk of being shut down. This places an undue burden on sites to monitor their own content, which effectively negates the entire point of the safe harbor provisions.

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But don't strict rules help catch pirates?

Again, nope. The second failure of the safe harbor provisions is the opposite of what happened in A&M Records: the terms can occasionally shield actively infringing parties. In a 2002 case, Perfect 10, Inc. v. CCBill, LLC, Perfect 10, a subscription pornography website, sued CCBill, a company that provided billing services to websites, for copyright infringement. Perfect 10 claimed that CCBill ignored “red flags” and was providing billing services to other websites that hosted Perfect 10’s subscription-only content illegally, thus indirectly facilitating copyright infringement. The DMCA defines checking for a “red flag” as a test to see “whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances.” Perfect 10 insisted that the sites CCBill worked with had several obvious signs of copyright infringement that should have been reported. However, the court ruled in favor of CCBill, arguing, “The DMCA notification procedures place the burden of policing copyright infringement…squarely on the owners of the copyright.”This means that it is the job of the copyright holder, and no one else, to ensure that their work is not stolen, which, as has already been determined, is nearly impossible. In A&M Records, Napster was not actively contributing to infringement and was taken down despite the provision, while in Perfect 10, the pirate sites were actively stealing content and no charges were brought up against them due to Perfect 10’s failure to correctly apply the safe harbor doctrine. It is situations like these where the DMCA falters; an act with clear and direct rules for liability would be far more effective at preventing piracy and infringement.