Liability Protections for online service providers under the DMCA and CDA

The Digital Millennium Copyright Act (DMCA) and the Communications Decency Act (CDA) provide significant liability protections for those who host interactive online media.  The cumulative protections provided by these two acts can potentially eliminate liability for copyright infringement and defamation.

 Unbeknownst to many blog authors and other providers of online interactive media, the definitions of a “service provider” and “interactive computer service” under the DMCA and CDA may encompass their activities.  The DMCA defines a “service provider” as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received” and “a provider of online services or network access, or the operator of facilities therefore.”  Under the CDA, an “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”  These definitions encompass the activities of traditional Internet service providers and those of any person providing a website that allows users to post or display material.  This means that those who host blogs, message boards, or websites that allow users to add comments or upload photographs fall within the definition of a service provider.    

Those who host interactive online media should be aware of the liability protections provided by the DMCA and CDA and ensure that they comply with the conditions necessary to take advantage of those protections.  The DMCA liability limitations generally mean that a service provider will not be liable for copyright infringements caused by third parties using the service provider’s infrastructure.  One of the significant limitations relieves a service provider from monetary liability for copyright infringement resulting from material that a third party user stores on the service provider’s system or network.  To qualify for this liability limitation the service provider must comply with certain conditions set forth in the DMCA.  For example, the service provider must not have actual knowledge of the infringement and must not be aware of facts or circumstances from which infringing activity is apparent.  Upon becoming aware of a claimed infringement, the service provider must respond expeditiously to remove, or disable access to, material that is claimed to be infringing.  Liability protection is also contingent upon the service provider designating an agent to receive notice of claimed infringements and informing the Copyright Office of this agent.  Other conditions include complying with procedures related to resolving competing claims to rights in the material and notifying users of policies. 

The CDA’s liability protections relate to general civil liability.  Under the CDA, the provider of an “interactive computer service” will not be treated as the publisher or speaker of any information provided by a user of the computer service.  This means that the provider will not be liable for any defamation caused by users of its service.  The CDA also protects the computer service provider from liability for acting in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. 

 David L. Bea & Associates can help you determine if your activities may be subject to these liability protections and what you need to do to take advantage of them. 

 The foregoing article was provided for general information and must not be relied upon as legal advice for any specific situation.  The attorneys of David L. Bea & Associates are experienced in copyright law.  If you have any questions, please do not hesitate to contact us.

© 2011 David L. Bea & Associates