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Are You an “Online Service Provider”? And, If so, Why Should You Care?

Jun 25, 20103 mins
Data and Information Security

If your company has a Web site and you allow customers, end users, visitors, and others to interact with the site and post comments, pictures, video, or other forms of content, then you should be very interested in a somewhat obscure 1998 federal law called the “Digital Millennium Copyright Act”.  The law, generally referred to as the “DMCA,” has many provisions – one of which provides a form of safe harbor for “online service providers” from copyright infringement claims. 

Who can be an “online service provider”?  The term is fairly broad and goes well beyond ISPs, Google, Yahoo, etc.  Almost anyone who has a presence online that includes interactivity with site visitors may well satisfy the definition. 

The benefit of being an online service provider under the DMCA is that if a visitor, end user, or other third party uploads material to the site that infringes the copyrights of a third party and the operator of the site comes within the safe harbor, the operator of the site, in general, cannot be held liable for monetary damages for the infringement.  Rather, their obligation is simply to remove the offending content.  This provides the operator with extraordinary protection from one of the most common claims made against Web site operators:  copyright infringement. 

So how much effort is required to potentially gain this protection?  Almost none.  All that is necessary is to complete a one page form and file it with the Copyright Office and pay a small one-time fee (approximately $100).   Finally, you must create a means for third parties to easily contact you regarding potential claims.  For more information on the DMCA and the simple registration process, visit

Finally, you may have seen the recent headlines of just how effective the protections described above can be in real-life.  Viacom recently brought a $1 billion copyright infringement action against YouTube for infringing content on their site.  Just this week, the U.S. District Court for the Southern District of New York found YouTube was not liable and need not police its site to identify posted materials that may infringe a copyright.  The court agreed with YouTube’s claim of protection from liability for all direct and contributory infringement under the DMCA’s safe harbor provision for online service providers. 

Given the potential upside if the safe harbor applies and the straightforward and simple registration process, companies with an online presence should strongly consider registering.


Michael R. Overly is a partner and intellectual property lawyer with Foley & Lardner LLP where he focuses on drafting and negotiating technology related agreements, software licenses, hardware acquisition, development, disaster recovery, outsourcing agreements, information security agreements, e-commerce agreements, and technology use policies. He counsels clients in the areas of technology acquisition, information security, electronic commerce, and on-line law.

Mr. Overly is a member of the Technology Transactions & Outsourcing and Privacy, Security & Information Management Practices. Mr. Overly is one of the few practicing lawyers who has satisfied the rigorous requirements necessary to obtain the Certified Information System Auditor (CISA), Certified Information Privacy Professional (CIPP), Certified Information Systems Security Professional (CISSP), Information Systems Security Management Professional (ISSMP), Certified Risk and Information System Controls (CRISC) and Certified Outsourcing Professional (COP) certifications.

The opinions expressed in this blog are those of Michael R. Overly and do not necessarily represent those of IDG Communications, Inc., its parent, subsidiary or affiliated companies.

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