As is now abundantly evident, the Internet has grown into an unprecedented, global, accessible, vibrant platform for free speech and creative expression. Never before have so many citizens been able to reach an audience across so many mediums, at such low cost. All of this activity depends in turn upon a thriving marketplace of service providers—including YouTube, MySpace, Facebook, Blogger, and Flickr, to name a few—providing inexpensive (or free) public fora for speech and innovation. Changes to the legal climate for these service providers can have profound consequences for the future of free expression online. Thus, proper interpretation of copyright laws as applied to online service providers is a matter of crucial public interest.
Congress enacted Title II of the Digital Millennium Copyright Act (DMCA), codified in Section 512 of the Copyright Act,3 in order to stimulate and shelter the growth and expansion of the Internet and electronic commerce. Congress chose to accomplish this goal by creating a set of “safe harbors” that would “provide ‘greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.’” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (quoting S. Rep. 105-190, at 20 (1998)) (emphasis added). Congress’ desire to establish a predictable legal environment is amply reflected in the statutory language, structure, and legislative history.