Social Networking Web Sites and the Dmca: A Safe-Harbor from Copyright Infringement Liability or the Perfect Storm?

Social networking sites have proliferated at an astounding rate, a reflection of insatiable consumer desire for their multi-faceted services. But their continued existence is threatened. A prominent feature of many such sites is the ability to upload content that can be viewed by others. Users can personalize their space by, for example, uploading family photos or home videos. It is equally possible however, to upload and share content owned by a third party – music from major record labels, Hollywood films, or copyrighted photographs, for example. While such activities by end-users will in many cases subject the user to potential copyright infringement liability, whether and to what extent the social networking site itself is subject to liability for the acts of its users is a question of considerable current import. A recent suit was brought by copyright holder Viacom against online video-sharing service YouTube, alleging contributory and vicarious copyright infringement and requesting at least $ 1 billion in damages based on the allegedly infringing acts of YouTube users. Congress had ostensibly addressed such a scenario in the 1998 Digital Millennium Copyright Act (DMCA), which provides a safe harbor for service providers that store content at the direction of users. Nevertheless, a number of requirements must be met before the service provider can take refuge in the safe harbor, requirements that social networking sites may not be able to satisfy. In the absence of safe harbor protection, secondary liability will be determined under the standard established in the 2005 Supreme Court decision MGM v. Grosker, which “premises liability on purposeful culpable expression and conduct." Whether content-sharing web sites can continue to exist or will collapse under crushing secondary liability is a question affecting an entire category of online service providers and threatening to dramatically restrict a significant use of the internet. This article addresses the legal and public policy questions involved and concludes by urging an outcome that will ensure the continued development of the online social networking phenomenon.