Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New
Center for the Protection of Intellectual Property, Policy Briefs & Issue Papers (Sept. 2020)
20 Pages Posted: 5 Nov 2020
Date Written: September 16, 2020
What do a grand, rather old statute rooted in the gritty world of coal and steel and smokestacks (the National Labor Relations Act, also known as the Wagner Act) and a splendid, rather new statute rooted in the sparkly world of silicon and plastic and computers (the Online Copyright Infringement Liability Limitation Act, Title II of the Digital Millennium Copyright Act) have in common? A lot, of course, including this: neither contains “safe harbors” identified as such by Congress. And both contain “safe harbors” identified as such by other government actors. This article will explore some aspects of judges’ and bureaucrats’ discovery and development of safe harbors, comparing their long-term experience with the National Labor Relations Act (NLRA) and their shorter-term experience with the Online Copyright Infringement Liability Limitation Act (OCILLA).
Keywords: Delegation, ISP, NLRB, Unions, FLSA, LMRDA, Hot Cargo, Garment, Vaca, Allentown Mack, 512, Standard Technical Measures, Red Flag, Expressio Unius
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