The DMCA’s Safe Harbor Applies to Websites

by on June 2, 2008 · 16 comments

Don’t miss the discussion between Debbie Rose and TLF’s Cord Blomquist about the DMCA safe harbor. Despite her long experience with the DMCA, Debbie takes what strikes me as an implausible position:

While I could go on for pages about what is wrong with your post, I’ll confine my comments to this: the DMCA does NOT give websites hosting user-generated content a safe-harbor.

The safe-harbor provision is for service providers- in other words, the network operators or owners of the “pipes.” As I wrote in a post last March, , this provision was the result of a long and difficult negotiation. As one of the House Judiciary counsels involved in the negotiations, I can assure you that websites such as YouTube were NOT intended to be included in the safeharbor.

Cord does a good job of citing chapter and verse from the DMCA, so I won’t belabor that point further. However, let me observe that the position Debbie is staking out here doesn’t even seem to me to be coherent. The DMCA’s safe harbor relates to “storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” Now, strictly speaking, nothing “resides” in the Internet’s “pipes.” If this language was intended to be limited to network owners, rather than the operators of servers, you have two hard questions to answer: first, why does the language say “system or network” rather than simply “network?” And second, why does it require the service provider to “remove, or disable access to” the content rather than simply requiring that access be disabled? After all, you can only remove information from a server if you operate the server, and for the most part the servers tend to be operated by someone other than the network owner.

I suppose you could argue that this provision applies only to servers that are operated by ISPs. But that doesn’t make a lot of sense, for two reasons. First, there would be no principled reason to provide a different level of immunity to web hosting services that own their own pipes to the backbone than to web hosting services that rent their pipes from someone else. And more fundamentally, you have the question of defining who counts as an ISP. After all, every web hosting service of non-trivial size administers a network. Certainly Google administers a sizable network connecting all of its servers. So why wouldn’t Google be able to claim the safe harbor as an ISP?

Debbie’s argument also runs counter to common usage. A quick survey of the takedown notices at Chilling Effects makes it clear that there are a ton of people out there whose copyright lawyers regard websites like Digg, Google, Wikipedia, and Gawker as proper targets for a DMCA takedown notice. Now, I suppose it’s possible that all of these copyright lawyers are incompetent, and that they should have filed copyright infringement lawsuits instead. But I tend to doubt it. And at a minimum, if all of these copyright lawyers are confused about the DMCA, there’s a pretty good chance that the judge in the Viacom lawsuit will share their delusion.

  • Ryan Radia

    Tim, thank you very much for posting this. I have been trying to formulate a coherent argument ever since reading Debbie’s comment, and you do a great job here of explaining why YouTube meets the DMCA’s definition of Service Provider.

    EFF’s Fred von Lohmann has also argued that YouTube is protected by the Safe Harbor. While the DMCA language is murky, I do think he is right.

    One more key point is that YouTube derives no financial benefit from infringing content. Try watching a YouTube video of a TV clip (or any clip that might constitute infringement). See any ads? Nope.

    YouTube does not advertise or otherwise generate revenues in a way that allows them to benefit from copyright infringment. This is one more reason why YouTube deserves DMCA Safe Harbor immunity. I’m also skeptical of the argument that YouTube actually is aware of every single user-posted video. Considering how many new clips are posted every day, it’s highly unlike or feasible for YouTube to view every video before posting it.

    If the Court ultimately sides with Viacom, then perhaps Congress ought to step in. The public policy implications of holding website operators responsible for user content are grave, and it would be very harmful for online innovation if websites are forced to pre-emptively censor user-driven content. Where would the Web 2.0 revolution be today were it not for the DMCA (and the CDA)’s Safe Harbor provisions?

  • Ryan Radia

    Tim, thank you very much for posting this. I have been trying to formulate a coherent argument ever since reading Debbie’s comment, and you do a great job here of explaining why YouTube meets the DMCA’s definition of Service Provider.

    EFF’s Fred von Lohmann has also argued that YouTube is protected by the Safe Harbor. While the DMCA language is murky, I do think he is right.

    One more key point is that YouTube derives no financial benefit from infringing content. Try watching a YouTube video of a TV clip (or any clip that might constitute infringement). See any ads? Nope.

    YouTube does not advertise or otherwise generate revenues in a way that allows them to benefit from copyright infringment. This is one more reason why YouTube deserves DMCA Safe Harbor immunity. I’m also skeptical of the argument that YouTube actually is aware of every single user-posted video. Considering how many new clips are posted every day, it’s highly unlike or feasible for YouTube to view every video before posting it.

    If the Court ultimately sides with Viacom, then perhaps Congress ought to step in. The public policy implications of holding website operators responsible for user content are grave, and it would be very harmful for online innovation if websites are forced to pre-emptively censor user-driven content. Where would the Web 2.0 revolution be today were it not for the DMCA (and the CDA)’s Safe Harbor provisions?

  • Timon

    It was inconceivable when the DMCA was passed that anyone would give away sufficient bandwidth to broadcast video. If Ms Rose recalls user-generated content coming up original discussions of the DMCA they are probably more interesting as specimens for the study of hindsight bias than copyright law. There was, as Mark Cuban has pointed out in arguments about the insufficiency of the DMCA, no idea that things like YouTube would come to exist, because at the time any online media distribution required fairly sophisticated commercial backing.

  • Timon

    It was inconceivable when the DMCA was passed that anyone would give away sufficient bandwidth to broadcast video. If Ms Rose recalls user-generated content coming up original discussions of the DMCA they are probably more interesting as specimens for the study of hindsight bias than copyright law. There was, as Mark Cuban has pointed out in arguments about the insufficiency of the DMCA, no idea that things like YouTube would come to exist, because at the time any online media distribution required fairly sophisticated commercial backing.

  • Matt

    Timon, I find it difficult to accept that no one could conceive of a day when online video services would be pervasive when the DMCA was being constructed. The fact that the technology wasn’t there to support the service in no way means that creative minds weren’t already thinking of it.

    If your argument were valid the entire realm of science fiction would not exist. The idea leads the technology, not vice-versa.

  • Matt

    Timon, I find it difficult to accept that no one could conceive of a day when online video services would be pervasive when the DMCA was being constructed. The fact that the technology wasn’t there to support the service in no way means that creative minds weren’t already thinking of it.

    If your argument were valid the entire realm of science fiction would not exist. The idea leads the technology, not vice-versa.

  • Jethro

    Timon, odd that you would use Mark Cuban and the idea that no one could know that video would be part of the web. Do you have any idea how Cuban made his money?

    Hint: he sold his business, which was called “broadcast.com”
    and was hyped by many at the time as being the next big thing on the web.

  • Jethro

    Timon, odd that you would use Mark Cuban and the idea that no one could know that video would be part of the web. Do you have any idea how Cuban made his money?

    Hint: he sold his business, which was called “broadcast.com”
    and was hyped by many at the time as being the next big thing on the web.

  • Timon

    Jethro:

    Interesting interval between comments. “Hint:… Broadcast.com.” Couldn’t have put it better myself! Broadcast is exactly the antiquated frame of mind of the DMCA model (high cost of distribution, lots of resources covering few events, which in the case of Cuban’s entry in the musical chairs game were big ticket sports and political events.) Do this thought experiment: what if individual LimeWire users were issued takedown notices and nothing further if they complied? Might as well not have copyright! So two systems are in place, one for users and one for service providers — and it was assumed that these two worlds would remain separate. That broadcast.com would go on with the sporting events, and aol.com would occasionally have to take down a piece of fan fiction. What turned out to happen is that YouTube bridged the two spheres and uses its DMCA exemptions to effectively launder the copyrights of the content. Cuban was making this point in the comments I noted.

    Matt:

    Of course everybody knew that video could move on line — but the ludicrous money, and all expectations, were on the idea that it would be something like… broadcast.com. It was not foreseen or contemplated by the law that the costs would drop to sub-zero levels, certainly not by people like Mark Cuban or the people who wrote the DMCA. The operative words were “give away sufficient bandwidth.”

  • Timon

    Jethro:

    Interesting interval between comments. “Hint:… Broadcast.com.” Couldn’t have put it better myself! Broadcast is exactly the antiquated frame of mind of the DMCA model (high cost of distribution, lots of resources covering few events, which in the case of Cuban’s entry in the musical chairs game were big ticket sports and political events.) Do this thought experiment: what if individual LimeWire users were issued takedown notices and nothing further if they complied? Might as well not have copyright! So two systems are in place, one for users and one for service providers — and it was assumed that these two worlds would remain separate. That broadcast.com would go on with the sporting events, and aol.com would occasionally have to take down a piece of fan fiction. What turned out to happen is that YouTube bridged the two spheres and uses its DMCA exemptions to effectively launder the copyrights of the content. Cuban was making this point in the comments I noted.

    Matt:

    Of course everybody knew that video could move on line — but the ludicrous money, and all expectations, were on the idea that it would be something like… broadcast.com. It was not foreseen or contemplated by the law that the costs would drop to sub-zero levels, certainly not by people like Mark Cuban or the people who wrote the DMCA. The operative words were “give away sufficient bandwidth.”

  • nulls101

    Thanks for sharing

    Regards
    Max
    http://thenewsempire.com/Sport/

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