If you or your business own a website with a blog, articles, or any other type of
content that enables user comments or posts, there are some very real copyright
infringement issues that you need to be aware of—even though you yourself have no
intention of infringing on anyone else’s rights. What if one of your users has copied
and pasted someone else’s copyrighted material onto your website? True, you did
not physically perform the infringement yourself—but regardless, the content has
ended up on the website that you are responsible for. Who is liable? If you’re not
protected by the Safe Harbor provision of the Digital Millennium Copyright Act,
you are.
Safe Harbor Provision: What It Is
In 1998, the United States implemented the Digital Millennium Copyright Act into
Title 17 of the United States Code (the Code dealing with copyright law) as an attempt
to keep legislation relevant and applicable to the technology of the times. Title
II of the DMCA is called the Online Copyright Infringement Limited Liability Act—otherwise
known as the Safe Harbor Provision. This provision limits the liability of an Internet
service provider for user-created copyright infringement so that the company itself
is not at fault for a random comment someone posts.
However, this limited liability only extends to those online service providers—OSPs—that
adhere to certain requirements. (In fact,
some companies actively seek out instances of noncompliance with the Safe
Harbor requirements for the very purpose of suing those at fault.) It is, to put
it mildly, in your best interest to become familiar with these requirements.
How It Works
The premise of the Safe Harbor Act is that it’s difficult, if not impossible, for
a company to effectively screen every post by every user for copyrighted material,
and therefore it’s easy to inadvertently host something that’s copyright protected.
But there’s a catch. In order to receive this legal benefit of the doubt, you as
an OSP need to make it as easy as possible for the copyright holder to let your
company know their material has been improperly reproduced on your website. Essentially,
the angry copyright holder needs to be able to find the name and contact information
of a person they can complain to whether they look on your website or go to the
Copyright Office’s website directly. If the information is missing in either of
those two places, you’re leaving yourself open to assume all liability for an infringement
that wouldn’t otherwise be your responsibility.
What to Do
First, let the Copyright Office know right away. In order for your website to fall
under the Safe Harbor Act, anyone must be able to look either at your copyright
infringement policy statement and the Copyright Office’s database of agents and
locate the following information:
- Legal name of your business
- Alternate or assumed name of your business, if any
- Name of contact person
- Physical address of contact person
- Telephone and fax number of contact person
- Email address of contact person
Basically, it is your responsibility to make it as easy as possible for the copyright
holder to get in touch with your company.
Now What?
If someone finds their copyrighted material improperly posted on your website and
you have complied with the requirements of the Safe Harbor Act, here’s what you
can expect:
- Your agent will receive a letter. This letter will tell you the name and URL of
the copyrighted material, a statement that that they believe the material is used
improperly, and some other legally required information.
- You will take the material down and notify the person who posted it.
- The person who originally posted the content, if they do not agree with the claim
that they improperly used copyrighted material, can submit a counter notification
to you, explaining that the material was mistakenly or improperly removed and that
no infringement has taken place.
- You will notify the person who sent you the takedown notice that the person who
posted the material does not agree with the infringement accusation.
- The copyright holder, at this point, has 14 days to bring a lawsuit to the person
they believe infringed on their rights. If they do not, you’re free to put the material
back up.
On the other hand, if someone finds their copyrighted material improperly posted
on your website and you have not complied with the requirements of the Safe
Harbor Act, here’s what you can expect:
Given the options, don’t you think compliance is worth your time?
One small but important caveat: there is very specific information that must be
present every step of the way. You can’t simply write something like “Email our
webmaster if this website is infringing on your copyright”—while your intentions
might help your chances of the infringed-upon giving you a pass, most of the required
information for a proper, legally recognized statement of your copyright infringement
policy is missing, leaving you open to a lawsuit.
Contact us to see how we can help you comply with these requirements. You
can also take a look at the DMCA FAQ provided by
Chilling Effects.