Federal Internet Law & Policy
An Educational Project
DMCA: Defenses to Liability Dont be a FOOL; The Law is Not DIY

There are four possible defenses to liability that deal with transmission, caching, storage, and search engines. [17 U.S.C. §§ 512(a)-(d) ]

In order to be eligible for any of these defenses, a service provider must

  • adopt [Corbis Slip at 15 (discussing how detailed policy must be)],
  • implement [Corbis Slip at 17 (discussing implementation of policy)], and
  • provide notice of [Corbis Slip at 16 (discussing quality of notice)]
  • a policy for dealing with subscribers who are repeat offenders; [Harlan] [Ellison at 1080] [Corbis Slip at 14 (discussing repeat offenders)] [Aimster] and

  • accommodate and not interfere with "standard technical measure" taken to protect copyrighted content. [17 U.S.C. § 512(i)]
  • Statutory Language: 17 U.S.C. § 512(i) Conditions for Eligibility.-

    (1) Accommodation of technology.- The limitations on liability established by this section shall apply to a service provider only if the service provider-

    (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and

    (B) accommodates and does not interfere with standard technical measures.

    For purposes of these defenses, a “service provider” is “a provider of online services or network access, or the operator of facilities thereof.” [17 U.S.C. § 512(k)(1)(B)]. This definition covers a broad range of Internet activities. [Aimster] [Henderickson v. Ebay] [Corbis] [Henderickson v.]

    Where the service provider is an educational institution, see 17 U.S.C. § 512(e) which sets forth conditions for treating potential infringers as third parties distinct from the institutions.

    Service providers are also immune from liability for wrongful takedowns. 17 U.S.C. § 512(g).

    Many ISPs may have immunity, indemnity, and waivers of liability within their terms of service.

    Note that in situations where the service provider does not fall under these provisions or elects not to participate in these defenses, the DMCA gives copyright owners rights to file for injunctions against service providers that would have the same effect as notice and take down. [17 U.S.C. § 512(j)]


    A network service provider has a defense to liability for the transmission of content where

    [17 U.S.C. § 512(a)] [Harlan] Note that the term "service provider" is a broad term. This is not restricted to commercial ISPs; this can mean libraries, community networks, or even WiFi hotspots. [Hendrickson v. eBay]

    Storage or Hosting, Caching, and Search Engines

    A service provider has a defense to liability for storage, caching, or providing a search engine [17 U.S.C. § 512(b)] where the service provider is "a provider of online service or network access, or the operator of facilities therefor." [17 U.S.C. § 512(k)(1)(B)]

    A service provider has no obligation to monitor its service for infringing activity. [17 USC § 512(m)]

    Storage or Hosting

    Service providers which store or host content [17 U.S.C. § 512(c)(1)] on their systems will have a defense to liability where the service provider

    "§ 512(c) "is clearly meant to cover more than mere electronic storage lockers." UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1088 (C.D. Cal. 2008) ("UMG I"). The relevant case law makes clear that the § 512(c) safe harbor extends to software functions performed "for the purpose of facilitating access to user-stored material." Id.; see Shelter Capital, 667 F.3d at 1031-35. Two of the software functions challenged here—transcoding and playback—were expressly considered by our sister Circuit in Shelter Capital, which held that liability arising from these functions occurred "by reason of the storage at the direction of a user." 17 U.S.C. § 512(c); see Shelter Capital, 667 F.3d at 1027-28, 1031; see also UMG I, 620 F. Supp. 2d at 1089-91; Io Group, 586 F. Supp. 2d at 1146-48. Transcoding involves "[m]aking copies of a video in a different encoding scheme" in order to render the video "viewable over the Internet to most users." Supp. Joint App'x I:236. The playback process involves "deliver[ing] copies of YouTube videos to a user's browser cache" in response to a user request. Id. at 239. The District Court correctly found that to exclude these automated functions from the safe harbor would eviscerate the protection afforded to service providers by § 512(c). Viacom, 718 F. Supp. 2d at 526-27." [Viacom Slip at 15 2nd Cir. 2012]


    A service provider that engages in caching [17 U.S.C. § 512(b)] of third party content will not be liable if the provider

    Information Location Tools

    Operators of search engines, hyperlinks, online directories and other information location tools will not be liable for linking to infringing material where the provider

    See also Parker v Google (no liability found where Google automatically and temporarily stores data)