Copyright is the single most significant legal issue online. As a website operator, you must be mindful of the subject as well as the Digital Millennium Copyright Act of 1998 [“DMCA”]. Why? DMCA compliance is the key to protecting yourself from copyright infringement lawsuits.
Copyright Infringement Risk
Today, the web is an interactive medium. You don’t talk to your target audience. You converse with them. One achieves this communication by allowing visitors to upload content to your site, such as comments on posts, reviews of products, and participation in discussion areas.
Where does copyright come into the equation? It becomes an issue when looking at the items being linked to or uploaded to your site by visitors. Consider Facebook as a classic example. Assume you see a funny cartoon image. You copy and post it on your Facebook page so all your friends can see it. If you do not have permission from the creator of the cartoon image to do so, you have just infringed on their copyright. The copyright owner can sue you for monetary damages.
At this point, you might be thinking copyright infringement happens all the time online. You are correct. How do large sites such as Facebook, Twitter, and YouTube avoid being buried under an avalanche of copyright lawsuits? The answer is the DMCA.
DMCA Safe Harbor
The issue of copyright infringement in the online medium was addressed in 1998 when President Clinton signed the DMCA into law. It was part of a package of legislation designed to protect sites from legal claims for copyright infringement, slander and a host of other legal claims. The goal was to allow the infant web to grow without the threat of lawyers burying websites under a wave of lawsuits.
In the case of the DMCA, the key provision is section 512(c). It provides a website with a safe harbor from copyright infringement liability for the content uploaded by visitors. In practical terms, a copyright holder cannot sue a site for material posted by a visitor. Let’s return to our Facebook example to see how this might work.
I see a cartoon image I think is hilarious, and paste it to my Facebook page. I do not have permission from the copyright holder. He moves to take legal action. He cannot sue Facebook because of the safe harbor provision of the DMCA. Facebook is not responsible for my postings. Does the copyright holder have any options? Yes. He can still sue me, the person who posted the image without consent.
If you allow visitors to your website to post anything, you should be moving to take advantage of the immunity provided under the DMCA. It is a free “get out of jail” card on the issue of copyright infringement, so it is money well spent.
Escaping copyright liability can’t be this simple, can it? There has to be a catch, right? In a word – yes. A website must strictly follow the compliance requirements detailed in the language of the DMCA. You waive the safe harbor immunity if you fail to meet these requirements. With damages as high as $150,000 per single infringement, this represents a significant risk.
The compliance regulations are extensive, but include:
- DMCA Agent designation and registration [try this service],
- Publication of a DMCA policy,
- Establishing a DMCA repeat infringer policy,
- Creation of a system for handling posted content before any complaints,
- Creation of process for evaluating and handling of infringement complaints known as takedown notices,
- Detailing and following a timeline of notices to be sent to the posting party and complaining party as required in the law, and
- Evaluation and handling of any end game by either the posting or complaining parties.
Many sites get into trouble by failing to follow the processes detailed in the DMCA. Website owners often believe they can just publish a DMCA policy, and that takes care of everything. When the first complaint comes in, however, the site operator fails to meet the time requirements detailed in the DMCA and waives the immunity provisions of the law. The site owner then contacts me in a panic, but there is little I or any lawyer can do other than to try to negotiate a settlement as quickly as possible.
Solution To The Risk
Complying with the DMCA is the answer to avoiding this risk. Take steps to comply with the Act, and you can sleep at night instead of stressing over whether groups like the MPAA are coming after you. Contact me today to learn more.
Richard A. Chapo, Esq.
Other Copyright and DMCA Articles Of Interest: