The DMCA Can Save Your Six

Do you accept comments on your website? Guest editorials? Do community groups post directly to your calendar? Funeral homes to your obits? You may not realize it, but if one of these contributors posts something—an image, for example—that violates a copyright, you are liable.

But there’s an out: register your website with a “DMCA Designated Agent,” which for most purposes indemnifies you from liability when one of your contributors crosses the line, as long as you play by the rules—if you can figure out what they are.

From the horse’s mouth—in this case, the horse is—here’s how it works:

The Digital Millennium Copyright Act (“DMCA”) provides safe harbors from copyright infringement liability for online service providers. In order to qualify for safe harbor protection, certain kinds of service providers—for example, those that allow users to post or store material on their systems, and search engines, directories, and other information location tools—must designate an agent to receive notifications of claimed copyright infringement. To designate an agent, a service provider must do two things: (1) make certain contact information for the agent is available to the public on its website; and (2) provide the same information to the Copyright Office, which maintains a centralized online directory of designated agent contact information for public use. The service provider must also ensure that this information is up to date.

The Copyright Office provides an online registration system and electronically generated directory; to designate an agent, a service provider must register with and use the Office’s online system.

Got that? For those of us who are a little rusty on gov-speak, here’s what it means:

1. Go HERE. To register, use the “Log in/Register” link in a box in the right column of the page.
2. You are registering your company as the “Service Provider,” and you or someone else in your company as the “Designated Agent.”
3. Add your websites as additional Service Providers.
4. Pay the one-time $6 registration fee.

Now what? From the Borghese Legal website, here are the steps (including the registration step given above):

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 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 your 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 rogue 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).

7. COMPLY WITH THE NOTICE AND TAKEDOWN PROCEDURES. Once your company has implemented the six steps above, a copyright owner’s 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 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.

Note that our Terms and Conditions page contains the required DMCA language

Our thanks to these resources for background information:; and the Borghese Law Firm. And special thanks to Contributing Editor Jay Douglas for suggesting and contributing to this story.