CPIP has published a new policy brief by Professor Ross E. Davies entitled Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New. Prof. Davies teaches administrative law, civil procedure, comparative criminal law, contracts, employment discrimination, legal history, legal profession, and torts at George Mason University Antonin Scalia Law School in Arlington, Virginia, and the policy brief is the product of our two Safe Harbors and Private Ordering in the Creative Industries research symposia that were held in 2019.

In the policy brief, Prof. Davies compares and contrasts two seemingly unrelated statutory provisions that are often referred to as “safe harbors”—despite that term not appearing in either statute: the National Labor Relations Act (NLRA) as codified in Title 29, and the Online Copyright Infringement Liability Limitation Act (OCILLA)—otherwise known as Title II of the Digital Millennium Copyright Act (DMCA)—as codified in Title 17.

The introduction and conclusion are copied below:

Introduction

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).

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Safe Harbors on the Horizon

Perhaps the best that can be said about safe harbors—and this is good, at least some of the time—is that they are rhetorically irrebuttable exemptions from broad prohibitions, and practically rebuttable presumptions subject to interpretive exceptions and glosses applied by courts and agencies in light of the policies underlying both the exemptions and the prohibitions. And that is what makes safe harbors distinctive: the duality of those policies and the laws implementing them. The samples from the NLRA suggest the endlessness of the search for balance between prohibitions and exemptions of this process (like much of statutory interpretation), and the samples from OCILLA suggest legislatures are not well-equipped to specify that balance clearly for judges upfront. And that may explain where we started, with the scarcity of “safe harbors” in statutes. Of greater practical importance may be the apparent long-term tendency of courts to treat safe harbors as havens for sailors (of whatever sorts) traveling in good faith, not for pirates (of any sort), no matter what disguises they don.

To read the policy brief, please click here.