DMCA Safe Harbor Explained: Why Your Website Needs a DMCA/Copyright Policy

By Steven BuchwaldAugust 1, 2017Copyright, Intellectual Property

 

The Internet would look very different today without the DMCA – a law passed by Congress in 1998, when the Internet was only 7 years old. Without the Digital Millennium Copyright Act (DMCA), YouTube, Facebook and Instagram and other similar sites would have most likely been sued out of existence. In fact, YouTube once faced a $1 billion lawsuit from Viacom for hosting 160,000 unauthorized clips of their programming. Thanks to the DMCA, YouTube didn’t pay a dime and won the lawsuit.

These websites rely heavily on user submissions. When a copyrighted video is uploaded on YouTube by a user, YouTube is technically liable for copyright infringement for allowing that video to be disseminated on its site.

This is where the Safe Harbor provisions of the DMCA come in.

The Safe Harbor carve out a protection for websites that passively host user content. To build a platform with great content, you need to understand the DMCA. In this post, we’ll explain some of the key provisions of the DMCA allowing websites to dodge liability for the copyright infringement of their users.

Copyright Infringement

If someone copies, distributes, performs, or displays another party’s copyrighted content without their authorization, this is copyright infringement.

As we’ve said, copyright owners can sue those who infringe on their copyright. Fortunately, your website can be immune from liability if it abides by the Safe Harbor provisions set out in Section 512 of the DMCA.

Understanding the DMCA

The rational for the Safe Harbor is that a platform that allows users to post content is a passive middleman that should be provided immunity from infringement because they do not actively engage in infringing activities.

Accordingly, to be eligible for safe harbor protection, the website must be truly passive, which means: (a) users select and upload content to your site and (b) the content is transmitted to the other users without modification and (c) the transmission, routing, provision of connections or storage must be carried out through an automatic technical process and without the service provider selecting the content.

Only websites which aggregate content from users in a non-selective way are eligible for DMCA protection.

DMCA Safe Harbor Requirements

A Website is immune from copyright infringement under the Safe Harbor if they:

– Don’t know about the infringement and are not aware of red flags making the infringement apparent,

– Once the infringement is known, you must expeditiously take down the infringing material,

– Don’t directly financially benefit from the infringing materials,

– Designate an agent for receipt of copyright claims both on its own website and in an online U.S. Copyright Office filing,

– Manage and implement a notice and takedown procedure in compliance with the Safe Harbor, and

– Adopt and implement a repeat infringer policy.

To comply with the notice and takedown procedure, the website must:

– Create a DMCA Policy and provide it to the site’s users (usually in the site’s Terms of Use),

– Expeditiously remove infringing material or block access on proper notice, and

– Implement a counter-notice process (optional).

YouTube, Facebook, Steam and other platforms all comply with this safe harbor. This immunize them from a large swath of suits by users.

The DMCA covers U.S. copyright only, not trademark, patent, defamation or foreign copyright. However, it is not uncommon for a website to voluntarily provide DMCA-like notice and take down procedures for all intellectual property claims.

Registering the Designated Copyright Agent Under the DMCA

To benefit from the safe harbor status, a platform must register with the Copyright office and appoint a designated agent. All registrations must be completed in the Copyright Office’s new electronic system.

You must renew your registration every three years. Otherwise, you will lose your safe harbor status. This is very easy (and costly) to forget.

Implementing a DMCA Policy

Make the DMCA policy visible on your site. It usually appears prominently within a website’s Terms of Use or as stand-alone DMCA/Copyright notice and takedown policy located in the footer of a website’s home page.  It should explain how copyright owners can file an infringement claim and what the claim must include.

An effective copyright notice for DMCA purposes must contain “substantially” the following elements:

– Identification of the copyrighted work which is claimed to have been infringed,

– Identification of the material that is said to be and sufficient information must be given for the platform to locate that matter on its website,

– Contact information for the copyright holder,

– A statement that the complainant believes in good faith that the use of the allegedly infringed material is not authorized by the copyright owner, its agent or the law,

– A statement that the above information is accurate and (the following part under penalty

of perjury) that the complainant is the owner or is authorized to act on behalf of the owner

of the copyright, or is the owner of one of the exclusive rights under copyright law that is

allegedly infringed, and

– A physical or electronic signature of the copyright holder or its agent.

If the claim is valid (in terms of both form and content), as a site owner, you should remove or disable access to the material. Notify the alleged infringer, who may file a counter-notice against the claim (as mentioned this step is optional).

Take Advantage of the DMCA Safe Harbor

The DMCA Safe Harbor ensures platforms remain sources of creative content and are not held responsible for their users’ actions. It has helped fuel Facebook, Pinterest YouTube and other platforms allowing their users to submit content.

The DMCA is a difficult tool to wield. Internet companies must implement a reasonable and compliant notice and takedown procedures and a repeat infringer policy, and keep their DMCA copyright registration active. Failure to comply with the DMCA opens your company up to gargantuan copyright liability that would stifle your company’s growth at best.

The startup lawyers at Buchwald & Associates can help you register, draft and implement an effective DMCA policy that will ensure your company grows and scales. Call us to get the insight you need.

DMCA Safe Harbor Explained: Why Your Website Needs a DMCA/Copyright Policy