The Digital Millennium Copyright Act (DMCA) safe harbor provisions protect websites from liability for material posted by their users. For example, if one of your users posts a copyrighted picture on your company’s help forums, the DMCA safe harbors will protect a compliant company from copyright infringement claims and monetary damages. This limited liability, however, only kicks in if the provisions codified under 17 USC § 512 are followed to the letter.
If your company has an interactive website, online community, message board, or blog comment section, it is critical that your business verify that it is in compliance with the DMCA safe harbor requirements. Failure to strictly comply with the DMCA safe harbor provisions can substantially increase your company’s liability for the actions of its website users.
In order to assure your company is in compliance with the DMCA safe harbors, the following steps are necessary:
1. Designating a DMCA Agent with the Copyright Office
First, your company must designate an agent with the United States Copyright Office to receive notifications of claimed infringement. If you do not formally designate a DMCA agent, the safe harbor provisions related to user content will not apply. The Copyright Office has set up interim procedures to allow these agents to be designated. The Copyright Office has also provided a form to name a DMCA agent or to amend a prior designation.
If you have any questions about filling out or submitting this paperwork, contact an attorney proficient in internet law who will review your website for compliance and help you comply with the DMCA. Some attorneys also act as DMCA agents for their clients, essentially high tech resident agents for online copyright complaints.
2. Posting the DMCA Agent Information Online
Once you have designated a DMCA agent with the Copyright Office, you must further identify the agent on you website. Most often this information is placed in your website’s terms of use. The information must include (i) the name, (ii) address, (iii) phone number, and (iv) electronic mail address of the agent. You may also wish to include a fax number and alternate phone numbers as well. When adding the DMCA agent information to your terms of use it is a good idea to completely review your current website terms of use to be sure they are in compliance with current statutory law and court opinions.
3. Remove Known Infringing Material
The DMCA does not require you to scour every message posting for copyright infringement. However if you have actual knowledge of infringing material or are aware of facts or circumstances from which infringing activity is apparent, you must remove the infringing material or disable access to it. While ignorance is bliss under the DMCA, if you become aware of infringing material, you must remove it.
Your company should thus review any internal or external correspondence or memorandums which identify any infringing material on your website, and verify that the material has been removed.
4. Terminate Repeat Offenders
In addition, your terms of use should adopt and implement a policy that provides for the termination of subscribers who are repeat infringers. A good rule of thumb (which has been adopted by YouTube) is to define a repeat infringer as a user “who has been notified of infringing activity more than twice and/or has had a user submission removed from the Website more than twice.”
Once this definition is met, (i.e. on the third strike) the user’s account should be suspended and the user should be denied access to his or her account. Suspension of the account is probably preferable to simply deleting the account as it will likely prevent the user from signing up for a new account with the same email address.
5. Review all Direct Monetary Aspects of Website
In order to qualify for the DMCA safe harbor, the website cannot receive a financial benefit directly attributable to the infringing activity. What exactly is “directly attributable” to the infringing activity? The courts are still struggling with this one. In general, if your commercial website is not a haven for copyright infringement and has a few rouge user submissions with copyrighted material you are probably going to be fine. Alternatively, if you have a commercial website which relies on infringing content for revenue you are in trouble.
6. Accommodate and Do not Interfere with Copyright Owners Policing your Website
Because under the DMCA safe harbor the responsibility for finding infringing material is left to the copyright holder, you should not interfere with the copyright owner’s ability to identify infringing works on your website (e.g. specifically blocking the IP addresses of the RIAA and MPAA).
In addition, at some point in the future all or some types of websites may be required to adopt standard technical measures to prevent copyright infringement. As of August 2011 These technical measures have not yet been adopted and are not currently mandated by the DMCA.
7. Comply with the Notice and Takedown Procedures
Once your company has implemented the six steps above, a copyright owners only recourse upon finding infringing material on your website submitted by a user is to follow the statutory notice and takedown procedures. It is critical that your company also follow these statutory procedures as well.
The notice and takedown procedures work as follows:
A. Receipt of Take Down Notice. When a copyright owner spots an alleged copyright infringement on your company’s website the copyright owner will send a notice to your company’s DMCA agent identifying the copyrighted work and identifying where on the website the copyrighted work can be located.
B. Removal of Infringing Material. Upon notification of claimed infringement you must remove, or disable access to, the infringing material.
C. Notice to User. After removal of the material, your company must take reasonable steps to notify the subscriber that the infringing material has removed or disabled.
D. Receipt of Counter-notice. If, after providing notification of removal, the user provides the company a “counter-notice” (defined below) the company: (i) must provide the copyright owner a copy of the counter notification, (ii) inform the copyright owner that alleged infringing material will be replaced in 10 business days; and (iii) if no lawsuit is filed by the copyright owner, replace the material not less than 10, nor more than 14, business days following receipt of the counter notice.
The counter-notice from the user should be: (i) a signed written communication; (ii) identifying the material removed and the location of the material prior to removal; (iii) a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification; (iv) the user’s name, address, and telephone number; (v) and a statement that the user will accept service of process and consents to the jurisdiction of Federal District Court.