The CDA And DMCA ' Recent Developments And How They Work Together To Regulate Online Services

• Jurisdiction: United States,Federal
• Law Firm: Crowell & Moring
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Social Media
• Author: Neda M. Shaheen and Jacob Canter
• Published date: 07 February 2023

Key Takeaways

1. While the CDA and DMCA are separate statutes, they work together to regulate online services
2. Section 230 reform efforts could impact how Courts and commentators treat the DMCA
3. The efforts to repeal or substantially reduce the protection for internet service provider under Section 230 raise questions for practitioners about potential corollary effects on use of the DMCA to advocate for users and websites.

Section 230 of the Communications Decency Act (CDA, codified at 47 U.S.C. ' 230) and Section 512 of the Digital Millennium Copyright Act (DMCA, codified at 17 U.S.C. ' 512) are separate legal structures that work together to uphold certain protections for online service providers against claims arising out user-generated content.

Enacted into law in 1996, Section 230 serves as a foundation of internet law, allowing major social media networks, blogs, digital marketplaces, and other websites to flourish. Section 230 provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. ' 230(c)(1). The law was written at a time when the internet was still in its infancy, and allowed the internet to grow, as one commentator has stated, from "baby to ... behemoth."

In 2011, Section 512 was adopted to provide an affirmative defense to copyright infringement claims arising out of certain content displayed online at the direction of a user. Section 512 only applies if the conditions for safe harbor have been met. Specifically, Section 512 explains that "[a] service provider shall not be liable for monetary relief, [...] injunctive or other equitable relief, for infringement of copyright [...] if the service provider [...] upon notification of claimed infringement, [...] responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity." 127 U.S.C. ' 512(c). While the DMCA focuses on copyright infringements, its safe harbor provision mirrors protections offered by Section 230.

These are important statutes impacting companies and users of online services right now. In the context of copyright law and the DMCA, a jury in the Eastern District of Virginia found that an internet service provider did not sufficiently implement DMCA requirements and awarded Plaintiffs a $1 billion verdict, which may encourage Plaintiffs to make such arguments with...