United States: For The Time Being, Tech Companies Remain Shielded From Liability For Users' Uploaded Content

Thanks to recent decisions by the First and Second Circuit Courts of Appeals, tech companies will remain protected from liability for some of their users' uploaded content under the Digital Millennium Copyright Act (DMCA) and the Communications Decency Act (CDA), at least for now.

Although the U.S. Supreme Court decided this past Monday not to reconsider the First Circuit's CDA decision in Jane Doe No. 1 et al v. Backpage.com, LLC, et al, the recording industry and internet service providers alike are watching to see whether the Court will reconsider the Second Circuit's DMCA decision in Capitol Records et al v. Vimeo, LLC, et al. Should the Justices decline to grant certiorari, tech companies will find protection from users' uploaded content within both the CDA and the DMCA.

The DMCA provides a safe harbor provision in 17 U.S.C. § 512(c). Section 512(c) grants protection from copyright infringement liability to YouTube, Google, Facebook, and other tech companies considered "internet service providers" when their users upload infringing materials. This protection is granted when the providers become aware of the infringing materials and remove the materials from their sites.

The DMCA is part of the federal Copyright Act of 1909, which was amended to protect sound recordings created after February 15, 1972. Songs recorded before 1972—classics such as Ray Charles' "Georgia on My Mind" and The Beatles' "She Loves You" — remain subject to state copyright laws. However, given that many classic songs are uploaded to YouTube and the like, commentators were unclear about whether the DMCA would protect songs recorded before 1972 until last year.

In 2009, Capitol Records, Virgin Records America, and several other music publishing and record companies sued Vimeo, an internet service provider that created an online video-sharing platform. Capitol Records alleged that Vimeo was liable to the companies for copyright infringement for 199 videos that were posted on the Vimeo website. These videos allegedly contained musical recordings for which the record companies owned rights, with some of the recordings including songs recorded before 1972.

In June 2016, the Second Circuit held that the DMCA's § 512(c) safe harbor provision did not apply to the pre-1972 songs, thus protecting tech companies with video-sharing websites when users upload classic songs. Capital Records petitioned the Supreme Court to review that decision on December 14, 2016. Tech companies are watching to see whether the Court will maintain its trend of preserving safe-harbor provisions for internet service providers, given that the Court declined to reconsider the First Circuit's Backpage decision concerning the CDA.

The CDA, 47 U.S.C. § 230, grants another safe harbor provision for internet service providers. It protects the providers from being considered the "publishers or speakers" of their user-generated content. " Tech companies commonly invoke the [§ 230] in defending against" liability over unsafe products, stolen property, and a myriad of other claims.

Backpage, a classified advertising website, invoked the CDA when it was sued by a minor, Jane Doe No. 1, and a woman, Jane Doe No. 2, in 2014. The Does alleged that they were sexually exploited beginning at age 15 and repeatedly sold for sex on Backpage.com as a result of advertisements for services posted on Backpage's "Adult Entertainment" section.

In March 2016, the First Circuit held that CDA's § 230 safe harbor provision shielded Backpage from liability, thus protecting internet service providers that act as publishers with respect to third-party uploaded content. The women filed a petition for certiorari, but the Supreme Court denied the petition this past Monday.

Thus, tech companies have found protection from liability for the content that their users upload on their websites under the CDA, and the tech industry continues to watch to see whether the Supreme Court will reconsider the DMCA ruling from the Second Circuit. For now, video-sharing websites can rest assured that they will not face liability for a variety of users' uploaded content.

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