The 1998 Digital Millennium Copyright Act (“DMCA”) is somewhat unique among U.S. federal legislation. To the credit of the lawmakers who originally drafted it, rather than creating a legal framework to further regulate an established industry, the DMCA anticipated and provided for technology and an industry that was barely in its infancy when the law was enacted nearly 15 years ago.

One of the most important sections of the DMCA, § 512, provides a “safe harbor” to “online service providers” from liability for the infringing activities of their users, provided that an online service provider, among other things, receives and responds to notices of claimed copyright infringement in a timely fashion1. This is frequently referred to as the “notice and takedown” requirement—i.e., where a service provider receives notice that user-posted material on its Web site is allegedly infringing, and it then promptly removes that material.

This safe harbor protection is vital for businesses like YouTube that allow users to post content on their Web sites when the business may not be able to independently determine whether the material is protected by copyright or whether the user owns the appropriate ownership or license rights. Without these DMCA safe harbor protections, every company that allows third parties to post content on its Web site would arguably be opening itself up to significant copyright liability.

Courts continue to Hone Contours of DMCA: 3 recent cases

Several recent federal appeals court decisions reveal a trend toward a relatively expansive view of the safe harbor.

UMG Recordings, Inc. v. Shelter Capital Partners

Late last year, in UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 667 F.3d 1022 (9th Cir. 2011), copyright owner Universal Music Group (“UMG”) sued the owner of Veoh Networks, which operates an Internet television and music video Web site, alleging that Veoh did not qualify for the safe harbor because it should have known that much of the content posted on its Web site was infringing.

The United States Court of Appeals for the Ninth Circuit (which is the federal appeals court in Pasadena, Calif. that reviews federal court decisions from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) disagreed, holding that Veoh was entitled to safe harbor protections and, since UMG had never sent any DMCA take down notices, Veoh was not liable for any infringing videos on its site.

The Veoh decision is noteworthy because it upheld the safe harbor even where the service provider in question was generally aware that certain content on its site was infringing because it was not aware – and was not made aware – of what specific content was infringing.

Viacom v. Google

In the very similar case Viacom v. Google, 676 F.3d 19 (2d Cir. 2012), the media conglomerate Viacom sued YouTube and its owner, Google, for copyright infringement based on various allegedly infringing videos that users posted on YouTube.

Google initially won summary judgment on the ground that its notice and takedown procedure shielded it from liability. Viacom appealed, arguing that YouTube should not qualify for the safe harbor because it was generally aware that there were infringing videos on the site, and therefore had the obligation to take “commercially reasonable” steps to police it.

The United States Court of Appeals for the Second Circuit (which is the federal appeals court in Manhattan that reviews federal court decisions from New York, Connecticut and Vermont) rejected this suggested shift in the burden to police infringement from content owners to service providers and affirmed the ruling in favor of Google.

Flava Works, Inc. v. Marques Rondale Gunter d/b/a myVidster.com

Most recently, in Flava Works, Inc. v. Marques Rondale Gunter d/b/a myVidster.com, 689 F.3d 754 (7th Cir. 2012), our own Neal Gerber Eisenberg (“NGE”) intellectual property group successfully argued that the safe harbor should protect myVidster, a social media video bookmarking site, which allows users to embed videos to a profile and share pages containing embedded videos.

The United States Court of Appeals for the Seventh Circuit (which is the federal appeals court in Chicago that reviews federal court decisions from Illinois, Indiana, and Wisconsin) overturned the lower court’s ruling that had assigned strict liability for copyright infringement to anyone creating a link on the Internet to an unauthorized copy of copyright-protected material and to the businesses that provide the space for users to create those links.

The Electronic Frontier Foundation called this signature win by the NGE intellectual property team a “victory for innovation and a vote for sensible copyright law.”

Stay Tuned as Courts Continue to Define DMCA Protection Boundaries

These cases suggest that the federal courts are willing to provide the DMCA safe harbor protections to Internet businesses and Web site operators that comply with their notice and takedown obligations. They also show that the federal courts are generally unwilling to require those businesses to go to extreme or economically inefficient lengths to ensure that the material on their Web sites is not infringing.

Both content owners and service providers will be watching DMCA case law carefully as courts continue to explore and explain the precise boundaries of how far the DMCA protections will be extended. NGE plans to remain at the forefront of these issues.