The Digital Millennium Copyright Act [“DMCA”] provides websites with a “get out of jail free” card for copyright infringement claims arising from content uploaded by users. Unfortunately, two recent cases are examples of how many websites manage to lose this protection through basic compliance mistakes.
Safe Harbor Protection
The merits of the DMCA safe harbor provisions are hotly debated by protagonists. As an online operator, you should love the law. These provisions provide you with immunity from copyright infringement lawsuits based on content uploaded by your users. Yes, the proverbial get out of jail card.
Of course, this immunity comes at a price. Online businesses must meet the compliance requirements detailed in the law. Unfortunately, many websites and apps fail to do so, which leads to a waiver of the immunity as shown in two recent cases.
Under the DMCA, a website or app must contain a mechanism through which copyright holders can submit complaints. Known as a “takedown notice”, you must take the following steps when receiving one of these notices:
- Promptly take down the offending images with 24 to 48 hours,
- Notify the posting party of the complaint,
- Allow the posting party to submit a counter-notice contesting the takedown notice.
- Upon receipt of a counter-notice, the offending content must be republished on the site within a particular period of time, and the counter-notice forwarded to the original complaining party.
This outline is a gross simplification of the compliance process, but it provides the basis for taking a closer look at how one site is alleged to have made a mess of things.
Imgur is a website where users upload and share images with other users. The site is being sued by photographer Christopher Boffoli. Mr. Boffoli alleges a number of his photographs were posted to Imgur without his consent. Following DMCA protocol, Mr. Boffoli submitted a copyright infringement complaint known as a “takedown notice” to the site. It is alleged Imgur responded as follows:
“The images have been marked for removal and will be deleted
from all of our servers within 24 hours.”
Why then is there a lawsuit? Imgur never removed the images. In fact, a staggering 200 days is alleged to have passed before Imgur took down the photographs. Given this delay, Boffoli is claiming Imgur waived the DMCA immunity and should be liable for up to $10 million in damages.
There are two sides to every story, and Imgur has not responded to the lawsuit as of yet. That being said, the business faces tens of thousands of dollars in legal fees to defend the action at an absolute minimum. If the lawsuit has merit and proceeds, those fees will bump up into the hundreds of thousands of dollars. If the court awards damages, the number will easily grow into the millions.
All of this because Imgur failed to take down the offending images in a timely manner.
The lesson from this case? You cannot just slap up a DMCA policy on your site. You must have a compliance procedure in place, and you must follow it to a “T”.
AllVoices is a community website where users can upload graphics and other pieces of content to share with other users. The potential for copyright infringement by users is very high. AllVoices appeared to realize as much and moved to qualify for the DMCA safe harbor protections soon after the site launched in 2008.
Perhaps the simplest compliance step required under the DMCA is the designation of a “DMCA agent” with the Copyright Office. For some odd reason, AllVoices failed to register their agent until March of 2011. This delay may well end up costing the company millions of dollars.
David Oppenheimer is a professional photographer. He discovered that a number of his photos were uploaded by users to the AllVoices website in February 2011 and sent the company a cease and desist letter. AllVoices did not immediately remove the photos as required under the DMCA. Oppenheimer filed suit against the company alleging in part that AllVoices waived its immunity by failing to register a DMCA agent prior to the occurrence of the copyright infringement. AllVoices argued the immunity still exists notwithstanding the late agent registration.
The judge overseeing the litigation ruled in favor of Oppenheimer, which reveals just how important it is to comply with the requirements of the DMCA. By failing to take one of the easiest compliance steps, AllVoices now finds itself in the middle of expensive litigation and faces the potential of a substantial damages award against it.
If you allow visitors to your site to post anything to it, including even just product reviews or comments, you are playing Russian roulette if you don’t take advantages of the protections provided by the DMCA. Don’t half ass it. Make sure you understand the compliance steps required to qualify for the safe harbor protections and then put a system and documentation in place to meet those requirements. Posting a DMCA policy on your site is not enough as Imgur and AllVoices are learning.
Contact me today to learn more about the DMCA and how to take advantage of the safe harbor provisions it contains.
Richard A. Chapo, Esq.