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The DMCA Safe Harbor Provision Is Stronger Than Ever

By Aneesh Mehta

Even as the economy continues to slowly recover from this recession, online sales are still booming, accounting for more than $200 billion over the past year. As the marketplace shifts from the sales counter to the desktop, counterfeiting and software piracy have also shifted to the virtual world.

For copyright and trademark owners, this creates a constant stream of newly evolved infringing activities to monitor. Although intellectual property owners have sought to hold online service providers liable for the infringing activities of their users, courts have repeatedly found them not liable so long as they adhere to the guidelines for the Safe Harbor Provision found in the Digital Millennium Copyright Act (“DMCA”). While online service providers like YouTube and eBay rely heavily on the safe harbor to operate, the protection provided by it remains a point of frustration among the entertainment industry and other copyright and trademark holders looking to protect their intellectual property rights.

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