Web Site Owners: How to Protect Yourself from Claims of Copyright Infringement for Users' Conduct
Digital Millennium Copyright Act ("DMCA") - Sec. 512 - Limitations on Liability Relating to Material Online
by Richard Keyt
If your web site allows users to upload and display text, graphics or other content, have you taken the steps provided in the Digital Millennium Copyright Act of 1998 (the "DMCA") that will allow you to avoid liability for copyright infringement arising from acts of your users? If not, then you are not alone. Most web sites have not. However, ignorance of users' copyright infringement on your web site will not be bliss if you become a defendant in a copyright infringement lawsuit because a user uploaded copyrighted content to your web site.
United States Copyright Law
United States copyright law provides that the owner of a copyright possesses certain exclusive rights, including the rights to reproduce the copyrighted work, to prepare derivatives of the work, to distribute copies of the work to the public and to display the work publicly. Exclusive has the meaning you would expect. Exclusive means that only the copyright owner may exercise the copyright owner's exclusive rights. It also means that anyone who exercises one of the exclusive rights possessed by the copyright owner may be liable for copyright infringement unless the person has a license from the copyright owner authorizing the use of the copyrighted work or the infringer's use is allowed as a "fair use" of the work. See "Fair Use."
Copyright infringement is a strict liability statute. The copyright law does not provide that innocent infringement is a defense to copyright infringement. Innocent infringers of a copyrighted work are liable to the owner for copyright infringement. The innocent infringer may have less monetary liability than a willful infringer, but nevertheless, the innocent infringer may still be liable for damages for copyright infringement and be subject to other judicial remedies.
Potential Copyright Infringement Liability
Every web site that allows users to upload text, graphics or other content assumes a risk that the user may upload copyrighted work without a license to do so. For example, if I have a web site and I allow my users to create personal web pages and one of my users uploads a picture of Mickey Mouse, both the user and I may be liable to Disney for copyright infringement unless one of us has a license from Disney allowing the user to upload the picture and allowing me to display it on my web site. If I am unaware of the problem, I may be an innocent infringer, but I am still liable to Disney for damages.
Web Site User Agreement Covenant
Web sites that allow users to upload content should require the users to first enter into a valid user agreement that provides, among other things, that the user covenants that the user will not upload any content to which the user does not have a license to upload and that the user will indemnify and hold the web site owner harmless for any breach of the covenant. Although this type of contractual provision may deter some users from uploading infringing material, it does not protect you from copyright infringement claims if the user breaches the covenant and uploads infringing content.
Monitoring Uploads Not Practical
One way web site owners can protect themselves against copyright infringement caused by their users is to monitor all uploads and delete infringing material before the material is displayed to the public. Caution: Make sure you have the legal right to monitor and delete or modify users' content before you exercise that right or you may be liable to the user for damages. Unfortunately, monitoring all uploaded content is an illusory solution to the copyright infringement problem because it does not work in practice. If a web site has any significant volume of uploads, the time and expense to monitor all uploads will be too great to review all uploads accurately and timely.
Even if a web site were to actually monitor all user uploads, the next problem is that it is impossible to detect all infringing uploads. Most reviewers could probably recognize that Mickey Mouse is a copyrighted work and delete it. No reviewer or stable of reviewers, however, could possibly recognize more than a relatively small number of the millions of copyrighted works that exist.
Digital Millennium Copyright Act Safe Harbor
The simplest, cheapest and best way a web site owner may protect against liability for copyright infringement resulting from users' uploaded content is to comply with the safe harbor provisions of the Digital Millennium Copyright Act. Web site owners who comply with the requirements of the DMCA and who take appropriate action after receiving notice of copyright infringement from a copyright owner, will not be liable for money damages for users' uploaded content.
Title 17, United States Code, Section 512(c)(1) provides that "a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." A service provider is "a provider of online services or network access, or the operator of facilities therefor" and an "entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." 17 U.S.C. § 512(k)(1).
Safe Harbor Requirements
The DMCA, however, does not grant blanket protection from copyright infringement liability. The service provider may not take advantage of the DMCA's safe harbor provision if:
In addition, if the service provider has the right and ability to control the infringing activity and if the service provider receives a financial benefit directly attributable to the infringing activity, the service provider will not be protected by Section 512 of the Digital Millennium Copyright Act. If the service provider satisfies the above requirements of the DMCA and receives a proper notice of infringing material, the service provider must expeditiously remove or disable access to the material that is claimed to be infringing or to be the subject of infringing activity.
Agent to Receive Notices of Claimed Infringement
Before a web site owner can be eligible to claim the protection of the safe harbor provision of Section 512(c)(1) the DMCA, the owner must have:
1. Filed an appropriate notice with the United States Copyright Office designating the owner's agent to receive notices of claimed infringement; and
2. Displayed on the web site on a page accessible to the public, the information set forth in the notice filed with the United States Copyright Office.
The notice must contain the name, address, phone number, and electronic mail address of the agent and other contact information that the Register of Copyrights may deem appropriate. If any information in the notice changes, the web site owner should file an amended designation of agent to receive notification of claimed infringement. Currently, the Copyright Office charges a fee of $30 to file both the designation of agent to receive notification of claimed infringement and the any amendment to the designation of agent to receive notification of claimed infringement.
Receipt of a Notice of Claimed Infringement
If a service provider has complied with all of the requirements of the safe harbor provision of the Digital Millennium Copyright Act and the service provider receives a proper notice of claimed infringement involving material or activity on the service provider's web site or system, the service provider must expeditiously remove or disable access to the material upon obtaining such knowledge or awareness of the infringing material or the service provider may not be protected by the DMCA against a claim of copyright infringement.
Protection from Liability for Claims from Users
The Digital Millennium Copyright Act may also protect the web site owner from claims from a user that the owner deleted or denied access to the user's material or activity. After receiving a proper notice of claimed infringement involving material or activity on the service provider's web site or system, the service provider will "not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing." 17 U.S.C. § 512(g)(1).
If a subscriber of the service provider placed the material on the system or network controlled or operated by or for the service provider and the service provider removes the material or disables access to it because of receiving a proper notice of claimed infringement involving the material, the service provider must take reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material. The subscriber may give the service provider a proper counter notification contesting the claims made in the notice of claimed infringement.
The contents of a proper notice of claimed infringement and a counter notification contesting the claims made in the notice of claimed infringement and the rights and obligations of the parties are beyond the scope of this article. The notice and counter notice involve deadlines for compliance and other procedures. If you are involved as a prospective sender of either notice or a counter-notice or an actual recipient of either a notice or a counter-notice, you should review Section 512 of the DMCA and make sure that you follow the procedures and satisfy the deadlines set forth therein.
If your web site allows users to upload text, graphics or other content, you may be liable for copyright infringement caused by your users unless you have previously taken certain steps necessary to allow you to claim the protection from copyright infringement liability under the safe harbor provisions of the DMCA.
To be eligible to claim the protection of the safe harbor, you must file: (i) an appropriate notice with the United States Copyright Office designating the web site owner's agent to receive notices of claimed copyright infringement, and (ii) display on your web site on a page accessible to the public, the information set forth in the notice filed with the United States Copyright Office. If you have not taken these two steps before receiving a notice of copyright infringement arising from a user's conduct, you will not be protected from liability under the safe harbor defense provisions of the Digital Millennium Copyright Act.
Related Articles on Internet Copyright Law by Copyright Attorney Richard Keyt
About the Author
Richard Keyt is a business and contracts attorney licensed to practice law in Arizona. Rick can be reached by telephone at 602-906-4953, ext. 3, email at email@example.com and fax at 602-297-6890. Rick's internet, e-commerce and domain name law web site is KEYTLaw, located at www.keytlaw.com. Communicating with Richard Keyt via email, telephone or otherwise does not cause you to become a client of Rick's or of KEYTLaw, LLC, or cause your communications to be confidential or subject to the attorney client privilege.
This article was first published on November 16, 2002.
This page was last modified on December 12, 2009.
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