The Digital Millennium Copyright Act (DMCA) is the main piece of legislation that has allowed websites like YouTube, Facebook, and Instagram to grow and keep from being sued out of business.
Essentially the DMCA is a safe harbor process that allows owners of websites to remove any intellectual property that someone claims are infringing on their rights, without also being held liable for the infringement. Websites like YouTube rely primarily on user submissions, but they’re not the only ones that need to comply with the DMCA to utilize its safe harbor provisions. If you operate a website that allows a user to post anything at all, blog comments, message boards, online communities etc. you’re going to want to keep reading. Because a website that allows for any type of user submission will be guilty of copyright infringement for allowing a user to upload infringing material to their page unless the right steps are taken.
To be eligible for the safe harbor provisions a website must be truly passive. How do you know if your website is actually passive for this purpose? 1) users are able to select and upload content to your site, 2) that content is transmitted to other users without any modifications, and 3) the transmission, routing, provision of connections or storage of the content must be carried out in an automatic process without you as the service provider selecting the content.
If your website aggregates content from users in a non-selective manner then you can comply with DMCA and use it as protection against a claim of copyright infringement.
Getting Compliant with the DMCA:
If your website is in compliance with the DMCA then you are good to go, and won’t be sued for copyright infringement based on user-submitted material.
This we know.
So how do you get compliant? The following steps will help point you in the right direction.
- Create and implement a DMCA notice and takedown procedure and have the policy visible on your website. Whether that be part of your terms of service or as a stand-alone document.
- Designate an agent for notice purposes that will receive the copyright infringement claims
- Do not know about the infringement or have an idea that it is happening
- Once you are informed of the infringement act “expeditiously” to take down the infringing material
- Adopt a policy to handle repeat offenders that continue to upload infringing material to your site
Agent Registration under the DMCA:
As the website owner, you must register with the Copyright office and appoint the designated agent. You can find a list of registered agents here. You must complete your registration online with the Copyright office and if you use that link you can navigate to the right spot.
Also, note that the registration needs to be renewed every 3 years or you may lose your safe harbor status. So get that one on the calendar. And for any other registration questions you might have the Copyright office has that great FAQ sheet so don’t hesitate to check it out.
Implementing Your Policy:
The best practice is to have your takedown policy in an easily available place on your site for users to read and understand. It should appear prominently if within your terms of service. There should be no mistake as to what your policy is. Also, ensure that the contact information for your registered agent is easily available and correct as that is where the complaints will be sent.
Explain to users how copyright owners can file an infringement claim with the registered agent, and what that claim must include. Things like identification of the copyrighted work claiming to have been infringed, identification of the material so that the agent and owner can find the material on the website, contact information of the copyright holder, a statement regarding the good faith belief the use is infringement, an electronic signature of the complainant along with a statement that the information is accurate and they are authorized to take this action.
If the claim is found valid, the agent will let you know and it is then your responsibility to take down the infringing material.
Removing the Infringing Material:
Although the DMCA doesn’t give a definition of “expeditiously” it is the best practice to remove the material as soon as you are told the claim is valid. Do not sit on this. If you do, you run the risk of losing the protection of the DMCA and can be held liable for the infringement.
Terminating Repeat Offenders:
It is also very important that you do not allow repeat offenders to continually post on your site. If a person is found to be infringing there needs to be a mechanism on your site to remove this person permanently. The standard seems to be if a user has been notified two times of uploading infringing material they are permanently denied access to the website. This might seem harsh but must be done in order to properly protect you and keep your site in compliance with the DMCA.
To Wrap it up:
The DMCA is a great way for website owners to protect themselves from copyright infringement lawsuits. It requires strict compliance so it is important that become familiar with the DMCA, its requirements and the best ways to stay compliant. There are additional things to note if the user is accused of infringement files a counter-notice claiming they have the right to use the material, but that can be an article for another day, or an email if you have more questions.
I hope you have found this helpful! As always my email is Shannon@montgomerypllc.com if you need help understanding the DMCA, drafting terms of service with a DMCA notice provision or more.
Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.