One Crack and an “Evisceration”: The Current State of the DMCA’s Safe Harbor

By Louis T. Perry and Katie A. Feiereisel

©2017. Published in Landslide, Vol. 10, No. 1, September/October 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The Digital Millennium Copyright Act (DMCA) has long frustrated content owners by providing a broad safe harbor to Internet service providers (ISPs), making it extremely difficult for a content owner to meaningfully enforce its copyrights. Content owners have long (and unsuccessfully) argued that ISPs must take responsibility for infringing material on their servers. ISPs have long (and successfully) argued that they are merely an informational conduit and can avoid monetary liability provided that they maintain this (semi) passive role. ISPs point to their compliance with 17 U.S.C. § 512, which covers infringement claims that arise “by reason of the 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.” The § 512 safe harbor protects an ISP if the ISP:

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