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.

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