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DMCA safe harbour provisions raised in SOPA debate

By | Published on Friday 18 November 2011


We reported recently that a legal rep for the Recording Industry Association Of America had said at a conference that the US record label trade body was increasingly concerned with the way the Digital Millennium Copyright Act has been interpreted in the American courts, especially when it comes to the safe harbour clauses that ensure website owners are not liable for copyright infringement when users or automated systems post or link to unlicensed content, providing they takedown infringing content from their servers when made aware of its presence.

The DMCA doesn’t go into specifics about how these takedown systems should work, and the RIAA feels the courts are not making enough demands on the website owners with regards the work they should put in to spot copyright infringing content.

Controversial streaming service Grooveshark, which lets users contribute music, defends its actions with the DMCA safe harbour provisions, and it’s thought some of the majors worry that might stand up in court, when they believe the streaming service only pays lip service to its takedown obligations. Although it’s not currently on the agenda, there’s a chance the RIAA could lobby US Congress for legislative clarification on website owners’ obligations.

Though it seems the issue is already being discussed in the corridors of power in Washington, albeit because of concerns expressed from the other side of the debate.

Legislators on the House Judiciary Committee were this week discussing the Stop Online Piracy Act, a controversial bit of legislation which, like the on-hold bit of the UK’s Digital Economy Act, would make it easier for content owners to get court injunctions ordering ISPs and search engines to block copyright infringing websites (of course, although that bit of the UK’s DEA is on hold, following the recent Newzbin case in the British courts a precedent has been set to allow such injunctions anyway).

Like the copyright sections of the DEA, the SOPA legislation is not without its critics, including the big players in the ISP and web sector. Which brings us back to the DMCA. Some, including Google, have expressed concern that SOPA, if passed, could gazump the DMCA’s safe harbour clauses, in that if content owners are given too much power to force copyright infringing websites to be blocked, they fear the injunction system may be used against websites which – in a standard copyright infringement action – would have protection under the digital copyright act.

It’s unlikely that would happen, though discussions in Congress about SOPA might require some clarification about when the DMCA’s safe harbour provisions should apply, and what measures web operators should undertake to earn protection, which would possibly satisfy the RIAA’s aforementioned concerns. So well done Google for bringing the matter up!

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