SoundCloud is an online service provider that allows users to upload, share, and download music that they have created. It is an innovative platform for both amateur and established producers and disc jockeys (DJs) to showcase their original tracks and remixes. Unfortunately, it is also a platform that lends itself to widespread copyright infringement. Looking toward potential litigation, several factors ought to be considered by SoundCloud and other similar providers. The Viacom v. YouTube case, decided in the Southern District of New York and now currently on appeal in the Second Circuit, sheds light on the potential liability service providers like SoundCloud face. It draws out the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions under which SoundCloud could potentially find protection. However, SoundCloud is unique among similar service providers because it provides users with a variety of viewing, sharing and downloading options that are built into the platform. These options could lead to infringement that would not fall under a DMCA safe harbor. This Issue Brief will discuss the various arguments to be made for and against SoundCloud’s liability, and examine whether the unique utility provided by the service to users could be sustained in the face of potential litigation. Ultimately, the safeguards used by SoundCloud to filter blatant infringement, combined with the DMCA § 512(c) safe harbor, should allow this innovative platform to maintain its current model without neutering its core functionality.
Jing Xu, DMCA Safe Harbors and the Future of New Digital Music Sharing Platforms, 11 Duke Law & Technology Review 145-162 (2012)