Many New York platforms rely on user content to grow. Few pay close attention to their Digital Millennium Copyright Act (DMCA) repeat infringer policy. Some businesses never adopt one. Others have a policy in place but rarely use or enforce it. Both situations create serious risk under the DMCA.
Courts expect platforms to do more than react to individual complaints. They look for clear rules and consistent enforcement when users repeatedly infringe copyrights. When a platform fails to meet those expectations, it can lose safe harbor protection.
Understanding how repeat infringer policies work, and how courts evaluate them, helps explain why weak enforcement often leads to expensive outcomes.
Why a Weak DMCA Repeat Infringer Policy Creates Risk
The DMCA requires more than a clause buried in your Terms of Service page. Courts expect platforms to adopt, communicate, and reasonably implement a repeat infringer termination policy.
When a platform ignores repeat behavior, courts may view that choice as tolerance of a DMCA violation. That perception can strip away the safe harbor provision that protects platforms from liability for user conduct.
This issue affects platforms of all sizes, from startups to established services.
What the Statute Requires Under the DMCA
Federal law sets out clear expectations for repeat infringer policies. Under DMCA section 512(i), a service provider must meet the following three requirements:
- Adopt a repeat infringer policy. The policy must allow termination of users who repeatedly infringe copyrights in appropriate circumstances.
- Inform users of the policy. Platforms must clearly communicate the policy, often through Terms of Service or user agreements.
- Reasonably implement the policy. Courts look beyond written language and examine how the platform acts when repeat infringement occurs.
A platform must meet all three requirements to maintain DMCA copyright infringement protection.
What “Reasonable Implementation” Looks Like in Practice
Courts do not require perfection, but they do expect real enforcement. A policy fails when it exists only in theory.
Situations in which courts have found that a platform did not reasonably implement a policy include:
- No terminations despite repeated notices. When a platform receives repeated notices about the same user but takes no action, courts may view the policy as meaningless.
- Temporary or symbolic terminations. Quickly restoring terminated accounts can suggest that enforcement lacks seriousness.
- Poor record-keeping. Without logs or tracking systems, platforms may not be able to identify repeat infringers at all.
- Ignoring repeat behavior by paying users. Courts react strongly when revenue appears to outweigh enforcement decisions.
By contrast, courts often uphold policies that involve platforms logging notices, tracking repeat behavior, and terminating or disabling accounts that engage in offending behavior.
Why Courts Focus on Repeat Infringer Enforcement
Repeat infringer policies play a central role in the safe harbor provision. They indicate whether a platform discourages infringement or tolerates it.
If a court concludes that a repeat infringer policy exists only on paper, serious consequences can follow, such as:
- Loss of safe harbor protection. Courts may deny protection for the period when the platform failed to enforce the policy.
- Exposure to secondary liability. Platforms may face claims based on user conduct they failed to address.
- Scrutiny of internal records. Plaintiffs often examine emails, logs, and customer service records to show tolerance of infringement.
In practice, many of these disputes are driven by copyright owners who have sent multiple takedown notices regarding the same users and later discover that a platform failed to act on repeat infringement despite clear notice.
These risks increase when a platform appears to prioritize growth or revenue over compliance.
From the copyright owner’s perspective, repeat infringer policies often fail not because notices are defective, but because platforms do not connect related notices or track user behavior over time. That failure is frequently what leads creators to escalate disputes beyond takedown requests and into litigation.
Practical Steps to Strengthen Repeat Infringer Policies
Platforms can take the following steps to improve enforcement without disrupting normal operations:
- Maintain a centralized notice log. Tracking notices and user accounts helps identify repeat behavior quickly.
- Define clear repeat infringer thresholds. Clear rules reduce uncertainty and support consistent decisions.
- Apply the policy consistently. Enforcement should not vary based on user popularity or payment status.
- Block obvious workarounds. Preventing rapid re-registration helps support meaningful termination.
- Train staff on how to apply the policy. Clear training helps prevent missed patterns and inconsistent enforcement.
Having a well-drafted, enforceable repeat infringer policy in place is one of the clearest ways to preserve DMCA safe harbor. These steps can help you show good-faith compliance and help reduce the risk of losing copyright infringement protection.
Why Weak Policies Lead to Expensive Outcomes
Courts examine how a platform handles repeat infringers to gauge its priorities. When enforcement breaks down, judges may conclude that the platform benefits from infringement or views it as acceptable.
A platform that allows repeat infringement can appear to tolerate a DMCA violation, even if it responds to individual takedown requests. That perception can weaken claims for protection under the DMCA and invite closer scrutiny of internal practices.
Strong enforcement sends a clear message that infringement is not part of the business model and helps preserve legal protections.
Jones IP Law Can Help You Develop Enforceable Policies
Many platforms do not review their repeat infringer policies until a dispute forces them to do so. By then, gaps in enforcement may already limit available defenses. Those disputes most often arise after copyright owners and creators have submitted repeated takedown notices and reasonably concluded that a platform is tolerating ongoing infringement.
Jones IP Law helps New York businesses assess whether their policies are effective in practice, not just on paper. Attorney Michael Jones has advised numerous clients on intellectual property risks affecting online platforms, software companies, and digital services. A significant portion of Michael’s DMCA practice involves representing copyright owners, artists, photographers, and other creatives seeking to stop repeat infringement of their work. That enforcement experience informs how repeat infringer policies are evaluated and why weak or inconsistently applied policies are often the first issue challenged in court.
Michael has represented clients in intellectual property matters before federal courts, the U.S. Court of Appeals for the Federal Circuit, the International Trade Commission, and administrative tribunals. He also served as a volunteer assistant attorney general in the New York Attorney General’s Office. In that role, he worked on data security and emerging technology matters.
Jones IP has extensive experience in assessing repeat infringer enforcement across various operating environments. If your platform relies on user-generated or AI-assisted content, we can review your DMCA repeat infringer policy, identify weaknesses, and take practical steps to reduce the risk of losing safe harbor protection. Jones IP can also help you draft a new policy if you don’t already have one.
Contact Jones IP today, and let Jones IP Law help you strengthen your DMCA policies.
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. DMCA issues are highly fact-specific, and legal obligations and risks may vary depending on the circumstances. You should consult a qualified attorney regarding your specific situation.
