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Welcome to the website of the Internet and Intellectual Property Justice Clinic, a University of San Francisco School of Law clinical program that provides legal assistance to parties in intellectual property matters. For more information, see the "About Us" page.

Our website includes commentary from our students on cutting-edge internet law and intellectual property topics. Those posts are listed below, and more are archived under "Pages" on the right. Enjoy!

YouTube’s Compliance with the DMCA’s Safe Harbor Provisions

By Allen K.

Given the revolution of the Internet and the rise in number of uploaded videos to the web, it has become much easier to reproduce and publicly distribute copyrighted works thus increasing the need for copyright protection. Enter YouTube, the revolutionary website that serves as a host for those who want to “Broadcast Yourself.” YouTube allows anyone to upload their videos to the website and publicly broadcast them to the world. This however raises many issues of copyright infringement as many videos are considered to be “derivative works” as they are based upon one or more pre-existing copyrighted works.

Under Title II of the Digital Millennium Copyright Act (DMCA), the Online Copyright Infringement Liability Limitation Act (OCILLA), creates a conditional safe harbor for online service providers (OSPs) against copyright liability. OCILLA requires that OSPs such as YouTube adhere to certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material if they receive a notification claiming infringement from the copyright owner or the copyright holder’s agent. In order to prevent false claims from being made, section 512(f) of the DMCA states that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages. Once YouTube has verified that the Complainant is authorized to bring the claim, under OCILLA, YouTube is required to remove the video until the alleged infringer provides sufficient evidence that they are in fact authorized to use the content.

OCILLA’s § 512(c) Safe Harbor provision requires that OSPs 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.

With thousands of videos uploaded daily and minimal policing by YouTube admin it is nearly impossible for YouTube to identify infringing material. As such, it only makes sense that the copyright owner or someone authorized to act on behalf of the copyright owner assert their ownership rights directly to YouTube. In order to file a copyright infringement notification, the complainant must send a written communication along with certain enumerated requirements. Upon receipt of the Copyright Complaint Web form, YouTube may forward the information provided in the legal notice to the person who provided the allegedly infringing content and claimant information will be published on the YouTube site in place of the disabled content.

As long as YouTube complies with the requirements for a given safe harbor, it is immunized and not liable for money damages. The passage of OCILLA has part of the 1998 DMCA represents a victory for telecom and Internet related industry groups over powerful copyright interests who had wanted service providers to be held strictly liable for the acts of their users.