Humanity has never been closer to becoming one giant community than it is now. Much of this development can be credited to not only the advent of the Internet, but the proliferation of sites where people can get together and communicate no matter their location in the world. If you are launching a site of this type or already have on, it is critical you understand the relationship between the DMCA and user-generated content to avoid becoming road kill on the legal superhighway.
What Is User-Generated Content?
User-generated content is simply anything created by a third party and uploaded to a site. For example, if I upload some photographs I’ve taken while on a hike to my Facebook page, those photographs are user-generated content.
User-generated content is a very broad concept. It can cover everything from videos to audio recording to writings to photographs and anything else somebody would upload to a site. Unfortunately, it can also lead to legal issues for the sites.
User-generated content comes with a host of liability risks. From slander to copyright infringement, there are plenty of potential problems. For example, if I write on my Facebook page that Bob Smith is a pedophile, and he is not, then I have slandered him. The question then becomes whether the site, Facebook, is liable for such statements, particularly given the fact the site is probably completely unaware of such comments. The answer gets into a discussion about the Communications Decency Act, but that is beyond the scope of this article. In this article, we are going to focus on users who upload content containing the copyrighted material of others.
Copyright is the right of an individual to replicate fixed works they have created. An example would be a song. If Taylor Swift writes a song, she owns the copyright to it. Anyone who wishes to replicate the song must pay her a royalty. If they do not, they are using copyrighted material without authorization. Swift can then sue them for copyright infringement.
Websites allowing users to upload content run the risk of being sued for copyright infringement. For example, assume you start a forum about political issues. What if a user uploads a video containing part of a documentary about a political figure? Unless the user has obtained consent from the documentary maker, the uploading of the video constitutes copyright infringement. Since it’s on your site, you are going to be sued as well under basic copyright law.
The application of copyright infringement in this situation may seem as though it’s an undue burden. After all, how is a site owner possibly supposed to monitor everything users upload to a site? It is practically impossible to do so. Recognizing this and the fact sites such as Facebook, YouTube and Twitter would be unable to function without some immunity from such claims, Congress passed the Digital Millennium Copyright Act of 1998.
The DMCA is designed to create an informal process for dealing with copyright infringement problems on user-generated content sites. For site owners, the key thing to understand is the DMCA is your friend. If you follow the requirements listed in it, a copyright owner cannot sue you for monetary damages based on a copyright claim associated with something one of your users uploaded to your site. It’s that simple.
The problem, of course, is copyright holders such as those in the music industry are very unhappy with this law. They are constantly trying different tactics to get around this immunity. Practically speaking, this means site owners must be diligent when complying with the DMCA. It is not enough to merely publish a DMCA policy on your site. You must register your agent, have your T’s crossed and I’s dotted.
I cannot emphasize the need to comply with the DMCA enough. If you allow people to upload anything to your website, including comments, DMCA compliance is a must, or you risk being sued for large amounts of money under copyright law. Copyright infringement is the number one claim made in relation to websites. The fact you can insulate yourself from such claims means, frankly, you are a blithering idiot if you don’t take advantage of it. Don’t make this mistake.
User-generated content websites are not only a popular trend today; they are clearly going to be the wave of the future on the web. If you own a site allowing users to upload content, make sure you comply with the DMCA. Feel free to contact me today at (800) 966-1679 for a free consultation today.
Richard A. Chapo, Esq.