Heather Smith-Carra

On February 1, 2018, the U.S. Court of Appeals for the Fourth Circuit issued a decision in the case, BMG Rights Management LLC v. Cox Communications, Inc. The Fourth Circuit affirmed in part the district court’s granting of summary judgment to BMG on the § 512(a) Digital Millennium Copyright Act (DMCA) safe harbor defense. Ultimately, the Fourth Circuit agreed with the district court’s decision that Cox was not entitled to the safe harbor defense, finding that Cox’s 13-strike policy for repeat infringers was effectively no policy at all, and far less than the termination policy required in order to maintain safe harbor protections.

In 2017, there were several noteworthy decisions relating to the Digital Millennium Copyright Act (DMCA). Specifically, the Ninth Circuit addressed two separate cases, one dealing with safe harbor provisions, the other on anti-circumvention. This article discusses three separate decisions including Mavrix Photographs LLC v. LiveJournal Inc., 873 F.3d 1045 (9th Cir. 2017)(on DMCA safe harbor), and Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017)(anti-circumvention provisions).

Every three years the U.S. Copyright Office analyzes whether to revise and/or renew the Digital Millennium Copyright Act (DMCA) anti-circumvention provision. The latest triennial rulemaking review under the DMCA relating to anti-circumvention provisions began on June 30, 2017, when the Copyright Office published a Notice of Inquiry requesting petitions to renew existing exemptions, and as well as petitions for new exemptions.

Understanding the Digital Millennium Copyright Act (DMCA) has become increasingly important for companies that want to protect their digital content. The DMCA was created primarily as a solution for service providers such as YouTube that host content uploaded by third parties rather than create their own original content. Service providers benefit from the DMCA because it protects them from liability in the event content uploaded to their site infringes another’s copyrights. While the DMCA addresses a number of copyright issues, the “safe harbor” provision remains one of its most important aspects.