Fourth Circuit Provides Important Guidance Regarding DMCA Safe Harbor

The Digital Millennium Copyright Act ("DMCA") protects against claims of copyright infringement for online providers who host user-generated content. It provides a "safe harbor" against copyright infringement claims arising from user posts, so long as the online provider implements an appropriate "repeat infringer policy" that terminates user accounts in appropriate circumstances.
In BMG Rights Mgmt. (US) LLC v. Cox Communs., Inc., Nos. 16-1972, 17-1352, 17-1353 (4th Cir. Feb. 1, 2018), the Fourth Circuit held that it is not enough for an online provider to simply adopt a repeat infringer policy - the policy must be enforced in a "consistent and meaningful" way. This not only requires terminating user accounts that are repeatedly reported for infringement, but also maintaining termination, and not simply reactivating such accounts after a short period of time. The safe harbor may be forfeited by ignoring or failing to act upon all reports of infringing user activity.

The court further narrowed the safe harbor by holding that a user need not have been found liable for copyright infringement to be a "repeat infringer." Rather, the user need only be "someone who interferes with one of the exclusive rights of a copyright" multiple times.

While this decision heightens the need for online providers to be proactive in addressing reports of potentially infringing users, we continue to encourage our clients to take advantage of the DMCA "safe harbor" provisions by both completing a DMCA registration with the Copyright Office and ensuring compliance with all "safe harbor" requirements.