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The content is subtitles in my case. Can I host it until I get a DMCA notice? Or can I not even host it?
Can copyright holders cause trouble without first filing a DMCA notice?
Most creators wouldn't care about subtitles, this is to handle odd cases where they do.
Edit: The subtitles are generated using AI/ML for movies that do not have any. This seems to be relevant https://en.wikipedia.org/wiki/Fansub#Legal_and_ethical_issues
You may at your peril.
The safe harbor provision in 17 USC 512 does not provide absolute immunity to service providers, that immunity is only available (c)(1)
if the service provider—(A)...(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent
Given your question, which reasonably assumes that the material is infringing, infringement is apparent. The DMCA provisions were written not to protect service providers, but to protect innocent service providers who are not aware of the infringing activities of their users. So it depends on what you know.
... and on a large enough scale that you can believably say you had no idea that content was on your site.
It does not help you if you were the one who uploaded the infringing content. No matter whose site it is.
Before DMCA, you had sites like Compuserve or AOL who closely curated the content on their sites. Yeah, they had discussion forums and file boards, but they also had staff or volunteer/staff moderators (much like SE does) who were actively reviewing all the content. If somebody started posting "Ender's Game" chapter by chapter, mods would tear it down and flag the member.
Why such heavy curation? They were worried about Orson Scott Card suing AOL if the novel got posted by users. Super unfair. Yet, the law (at the time) was stuck in the old mentality of "the owner of a printing press knows what's coming off it". This moderation wasn't free. Not in the sense of free beer or free speech.
The DMCA "Safe Harbor" was designed to solve all three. It said that if the site is in the business of dealing with User Generated Content, it could be protected from lawsuits without the need to human-curate all that content. Sites got freer (like beer), freer (like speech), and vastly bigger with no need to curate.
This made possible sites that were simply impossible up to this point. Like Livejournal... or the Youtube comment section... or Youtube proper, even. GitHub could publicly host code without getting caught in the middle of a lawsuit between two uploaders. This also meant smaller sites could get in the game at minimal risk, which allowed the creation of thousands of niche sites.
The core of DMCA protection is still that. So let's try a few examples.
General site: Joan creates a site that hosts ASCII text files, and it has 400 users. One of them, Pam, figures out a way to override the ASCII and upload subtitles. Joan can reasonably argue "I did not know that was there". The DMCA Safe Harbor ends that argument and protects Joan. Pam is still liable for uploading the content.
Subtitle site: Kevin creates a site specifically to host subtitles for TV and movies. Pam uploads some subtitles. Kevin can argue "I wasn't aware of that particular subtitle upload". However, the victim can argue "Your site is specifically for subtitles. What did you think they were uploading? 99% of things that people want subtitles for are other people's copyrighted work, you're basically Pirate Bay for subtitles". That's a valid point and Kevin will have a challenge overcoming that argument. So Kevin is at risk, but Pam is still liable for uploading the content.
Ones Own Site: Pam creates a subtitle website and uploads subtitles. No one else is involved. The DMCA Safe Harbor protections do not apply to Pam as the site owner because Pam is directly involved in the disputed content, and cannot claim to be unaware of it. Pam is still liable for uploading the content.
A fake public site: Pam sets up a supposedly public site like the first example. Then, Pam sets up sockpuppet accounts and uploads subtitles pretending to be other users. But there aren't a lot of other users, mostly it's just Pam. The copyright holder will probably probe for that: subpoena information to test whether the site is a bona-fide ISP. Pam's choices are now to fess up, or lie in court documents. Neither one is a good option - if caught it could mean jail.
As long as you are just the host, you can use the DMCA as your defense - if you follow all rules under the DMCA. Then you technically don't have to know what your users do, but you have to remove them from your webspace. Example hosts are Youtube or Thingiverse, which just offer space for your videos/3D models. And when they get a DMCA notice, they remove said content.
To be a host, you may not be the one that uploaded the content. It has to be a user that is not affiliated with you in any way. If you uploaded the content, you are not a host, and you can not protect yourself using DMCA - and you are infringing copyright. See for example the Romuniverse case.
In Brazil, piracy happens only when the "author" (intellectual proprietor) complains to authorities or file the DMCA notice. If they don't bother to do either, then you're safe.
And subtitle is explicitly not protected by the authors rights law, so yeah you're safe to create and distribute subtitles freely.
