First, The safe harbors only protect you from lawsuits over copyright and nothing else. This is an important point. There are other laws, like section 230 of the Communications Decency Act which we’ll be discussing in a few weeks, that can protect you from other issues, but section 512 of the Copyright Act (the DMCA) only protects you from copyright liability.

Second, Jason reminded me that the safe harbors don’t protect you against what we can call “red flag knowledge” — situations where the podcaster/blogger knows or should have known that something posted to their site is infringing. This would be like a full episode of a TV show or a full music file from an RIAA label. Something where there is no colorable fair use argument. So, in those situations, even if you employ a section 512 coypright agent and have a take down policy, you cannot hide behind the safe harbor if you actually know or should have known the content is infringing.