How the DMCA's Online Copyright Safe Harbor Failed

In 1998, Congress enacted the Digital Millennium Copyright Act ('DMCA'). One of its provisions, 17 U.S.C. § 512, gave online service providers a safe harbor from liability for user-caused copyright infringements. The web hosting safe harbor's structure was relatively simple: copyright owners assume the burden of notifying service providers when their users are committing copyright infringement, at which point the service providers are expected to intervene if they want to avoid being liable. This system, called 'notice-and-takedown,' has served the Internet well enough to create many interesting and important user-generated content websites. Unfortunately, 15 years of relentless litigation by the copyright industry has created a number of cracks in the notice-and-takedown system. As a result, the notice-and-takedown system is failing as a safe harbor, progressively undermining the safe harbor's ability to foster entrepreneurship in the user-generated content industry. This Essay explains how cracks in the safe harbor are rendering it useless.