Yes, DMCA Safe Harbors Apply To Websites

from the not-this-again dept

Every once in a while, when discussing the DMCA's "safe harbors" someone shows up in the comments to insist that the safe harbors were never intended to apply to websites, but merely to ISPs. Tim Lee does a nice bit of work absolutely destroying that assertion, by pointing out how it doesn't make sense given the language of the law which clearly is designed to apply to websites as well as network providers (otherwise, as he notes, why would they ever suggest content would have to be "removed" rather than just "blocked").

But, more importantly, the focus should be on the overall intent of the law beyond just the specific scenarios on the mind of those who wrote it. Even if it's true that those who crafted the language weren't "thinking" about websites when they wrote it, the intent of the safe harbor is clear, and it should apply to websites as well as network providers. Why? Because the whole point of safe harbors was to make sure liability was properly applied to those who actually infringed, rather than an easy-to-target company. That it was the network providers who raised this concern in the first place doesn't mean that the same thinking wouldn't apply to websites as well. And, on top of that, while the safe harbors of the CDA (for things like defamation) haven't been harmonized with the DMCA's safe harbors -- the purposes are nearly identical, and the courts have granted extremely wide coverage of the CDA safe harbors, so there's no reason to think that they wouldn't apply the same broad interpretation to the DMCA as well.


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