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January 31, 2012 / Erach Screwvala

No Storm in DMCA Safe Harbor

In our discussion of SOPA and PIPA, which can be found here, we noted that SOPA/PIPA would alter the existing enforcement landscape by placing a larger burden of policing infringement on ISPs than current law, the Digital Millenium Copyright Act (“DMCA”) requires. A recent decision by Judge Sweet in the United States District Court for the Southern District of New York reinforces the DMCA’s safe harbor provisions and the requirement of content owners to police infringement.

At the heart of the DMCA is the safe harbor provision. We discussed the safe harbor in some detail here. When an ISP or website qualifies for protection under the safe harbor provision, the ISP or website is relieved of the burden of preventing potentially infringing content from being uploaded on its website or server. Instead, under the DMCA, content providers have the onus of policing infringing content on the internet and providing adequate notice to the ISP or website.

In Wolk v. Kodak Imaging Network, Inc., plaintiff Sheila Wolk, a visual artist, sought to a preliminary injunction against the website Photobucket from infringing her copyrights. Plaintiff alleged that several of her copyrighted images were uploaded to Photobucket without her permission. Plaintiff served several DMCA takedown notice to Photobucket demanding that the website remove her copyrighted work. A notice served under DMCA must, among other things, provide the identity and location of the allegedly infringing conduct.

Consistent with its obligation under the DMCA, Photobucket removed content in response to notices from Wolk that properly identified the nature and location of the infringing material. Wolk, however, asserted that she was not required to provide DMCA compliant notices because her prior notices placed Photobucket on notice of infringing content on its website.

Close still only counts in horseshoes, though, and Judge Sweet rejected Wolk’s invitation to adopt an approach that would shift the burden of policing infringing content onto Photobucket. The ruling is consistent with other cases on this issue and further reinforces the DMCA’s safe harbor mechanism and the burden on content owners to police acts of infringement. Whether a renewed push for legislation similar to SOPA/PIPA will change things remains to be seen.


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