DMCA Safe Harbors

 Safe Harbors for Educational Institutions In The Digital Millennium Copyright Act 

The Digital Millennium Copyright Act ("DMCA") was signed into law in the United States on October 28, 1998. The legislation was the result of two World Intellectual Property Organization ("WIPO") treaties, which the United States joined. The Act addresses various copyright issues, directs certain studies, and creates new areas of copyright protection; and, as much as the Act has been criticized, it does provide some very real copyright infringement safe harbors for nonprofit education institutions.


Specifically, Title II of the DMCA creates immunity for acts of copyright infringement on a Web site or other network resources, if the institution adopts a policy and procedure for handling infringement complaints, posts them on its Web, and registers an agent with the United States Copyright Office. The Act also provides special immunity for institutions when there are allegations of infringement by faculty members and graduate research or teaching assistants, if the institution provides copyright education. This article offers a simple policy and procedure to begin taking advantage of the DMCA protections for libraries and institutions of higher education.


These safe harbors are increasingly important as schools loosen restrictions on peer-to-peer usage, and copyright holders escalate their self-styled "war" against infringement; specifically targeting academic institutions. When one simple act of copyright infringement can result in an injunction, statutory damages of $150,000.00, compensation for lost profits, liability for the attorney fees of the party claiming infringement, court costs, and criminal penalties, limitation of liability is worth serious consideration.


Title II of the DMCA creates new limitations on liability for copyright infringement by Online Service Providers ("OSP's") based on four categories of conduct:


1.   Transitory communications;

2.   System caching;

3.   Storage of information on systems or networks at direction of users; and

4.   Information location tools.


Each limitation provides a complete bar to monetary damages, and restricts the availability of injunctive relief in various respects. Moreover, nothing requires a service provider to monitor its service or access material in violation of law in order to be eligible for any of the liability limitations. This article is primarily concerned with category 3, storage of information on systems and networks, and with the specific provisions for higher education.


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