The DMCA Repeat Infringer Policy

The Digital Millennium Copyright Act [“DMCA”] contains more provisions and requirements than most site owners seem to grasp. The failure to comply with all elements of the Act can lead to a loss of the safe harbor protection from liability for websites. One area where site owners constant run afoul of the law is the DMCA repeat infringer policy.

Safe Harbor

Commentators have made a meal out of criticizing the DMCA, but it is a godsend if you own a website where third parties are allowed to post content. Why? The Act contains a safe harbor provision every site owner should know and understand thoroughly.

The safe harbor provision includes language indicating that so long as a website takes certain actions required by the Act such as posting a DMCA policy and designating an agent to receive complaints, a copyright owner cannot sue the site for copyright infringement based on content uploaded by users. Read that sentence again. It is important.

Let’s consider an example of the DMCA in action. I love politics. I decide to put up a forum covering political matters on the web. One of my members posts a video of a famous politician doing something stupid. The member adds a popular song to the video. As the DMCA agent for the site, I then receive a copyright infringement complaint from the record company responsible for the song. So long as I follow the requirements of the DMCA, the record company cannot sue me for monetary damages. The company can sue the person posting the video, but that is all.

For all the criticism the DMCA receives, it is one of the singular laws allowing the web to function as it does. Without this law, there would arguably be no user-generated content websites in existence. Why? They would be buried under copyright infringement lawsuits. This includes sites such as Facebook, Twitter, LinkedIn, Google+, any forum and so on. If you allow users to post content on your site, don’t hate the DMCA – love it. It keeps you out of court.

Repeat Infringer Policy

What is a repeat infringer policy? Let’s assume ten years ago I was smart enough to start a little site by the name of YouTube. The site takes off like mad and has millions of members. The members post tens of thousands of videos a day, a number I can’t hope to keep up with when it comes to checking for copyright infringement.

Now let’s assume one member loves to make videos and in each video, he adds a song from his favorite artist. The record company behind this artist is none too happy about this as the use of the songs constitutes copyright infringement in their opinion. The company files copyright complaints with me, and I dutifully take down the videos. The member responds by uploading a new batch of videos with more songs from the artist. The record company complains again, and we fall into a never ending loop of complaints, video removals, new video uploads and more complaints.

The repeat infringer policy is designed to keep this from happening. The DMCA requires a site to maintain a reasonable policy regarding repeat offenders. If a member violates the policy, their account must be terminated. If this step is not taken, the site loses the safe harbor protections of the DMCA.

Let’s return to our YouTube example above to see how the repeat infringer policy applies. Once the copyright holder files DMCA complaints regarding the songs used in the videos uploaded by the member, I am going to take down all the videos and give notice of the complaints to the member. If the member does not file counter-notices and prevail on them, I will classify each of his videos as a copyright violation for purposes of the DMCA. Each video will count as one complaint. If I remove 10 videos under this process, he is going to be in violation of the repeat infringer policy for the site. I will then close his account and remove the videos he has uploaded, even the legitimate ones.

If you own a website and allow third parties to post content to it, you should comply with the DMCA. Developing and posting a repeat infringer policy is party of the compliance process. Contact me today for assistance in establishing the necessary policies and procedures for your site to maintain a safe harbor defense.

Richard A. Chapo, Esq.

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