What Is a Safe Harbor?

Safe Harbor

A safe harbor is a legal provision in a statute or regulation that provides protection from a legal liability or other penalty when certain conditions are met.

In copyright law, Section 512 of the Digital Millennium Copyright Act (DMCA) establishes four safe harbors that limit the liability of various types of online service providers for the actions of their users or subscribers. Safe harbor is available for service providers that (a) provide transitory digital network communications; (b) cache material within their system or network; (c) store information at the direction of their users; or (d) provide information location tools. Section 512 is sometimes referred to as the Online Copyright Infringement Liability Limitation Act (OCILLA).

Among other things, Section 512 enacted a “notice-and-takedown” regime, under which copyright owners may notify online service providers of alleged infringements; service providers may then be protected from liability if they promptly remove or disable access to the allegedly infringing material, where possible. Service providers must also meet certain other criteria to qualify for safe harbor protection, including properly identifying an agent to receive notifications of alleged infringement, and adopting and implementing a policy to terminate the accounts of repeat infringers.

Visit Winston’s Privacy blog for safe harbor provision developments.