Safe Harbor for Service Providers Under the Digital Millennium Copyright Act

Publication Date: January 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

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Abstract:

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 in an effort to adapt copyright law to an evolving digital environment. The expansive legislation is divided into five titles, the second of which is the focus of this report. Title II of the DMCA amended chapter 5 of the Copyright Act, 17 U.S.C. § 501 et seq., and created a new § 512 to limit the liability of service providers for claims of copyright infringement relating to materials on-line. This "safe harbor" immunity is available only to parties that qualify as a "service provider" as defined by the DMCA, and only after the provider complies with certain eligibility requirements.

In exchange for immunity from liability, the DMCA requires service providers to cooperate with copyright owners to address infringing activities conducted by the providers' customers. Subsection 512(h) obligates service providers to divulge to copyright owners the identity of a subscriber suspected of copyright infringement. The subsection provides a detailed procedure that a copyright owner must follow in order to obtain a subpoena from a federal court compelling the service provider to reveal the identity of the suspected infringing user.

This report describes the safe harbor and subpoena provisions, along with the responsibilities and obligations of service providers under 17 U.S.C. § 512. In addition to highlighting specific aspects of the statutory text, the report examines case law to date interpreting and applying the DMCA's safe harbors and subpoena procedure. With respect to the latter, the report examines the recent decision of the D.C. Circuit Court of Appeals in RIAA v. Verizon Internet Services, holding that service providers may not be subpoenaed to identify peer-to-peer music-file sharers.