Did you know that, under the U.S. copyright law, if a third party uploads or posts copyrighted material to your website, and the third party did not have authorization to do so from the copyright owner or exclusive licensee of that material, your organization can be held strictly liable for copyright infringement as the operator of the website where it was posted or uploaded?
This is alarming but true – there is strict liability in copyright law. This means that, even if your organization did not put the infringing content on your website, or did not even know it was there, you can be held strictly liable for infringing content uploaded to your website by another.
However, as a result of pressure from internet service providers, four safe harbor provisions (Section 512(a) through (d)) were included in the Digital Millennium Copyright Act (DMCA) some time ago which shield service providers from copyright infringement liability under certain circumstances. While there is much to discuss in this area, this article will focus only on the 512(c) safe harbor, which, if you qualify and comply with the statute, can absolve a service provider from liability for storing material, at the direction of a user, residing on a system or network operated by or for the service provider. While a variety of entities may qualify as a service provider, here we discuss only the one that is a service provider by virtue of operating a website. Put simply, assuming you qualify as a “service provider” (and website operators typically do) and comply with the statutory requirements of Section 512(c) of the DMCA, you may qualify for a “safe harbor” from this strict liability for the infringing material posted or uploaded by another party to your website.
So what should the average website operator do in an effort to qualify for this “safe harbor” from liability? Three things:
- Designate, on your website in a publicly available location, an agent to receive notifications from third parties of claimed copyright infringement and include the name of the service provider, and the name, address, phone, fax, and email of the specific designated agent you have selected to receive notifications.
- Provide the U.S. Copyright Office with the required information for the designated agent. A number of cases, including one as recent as June 30, 2015, have held that if you do not directly provide the U.S. Copyright Office with the required information about your designated agent, you cannot claim any safe harbor from liability – period. This is the step that we find clients most often overlook.
- Respond expeditiously to any effective notifications, or “take down” notices you receive, as required by the statute. Because some notifications, and your response thereto, can be nuanced, we recommend you discuss with copyright counsel your own protocol for responding to these notifications.
To be clear, not every website operator will always be able to take advantage of the 512(c) safe harbor, depending on the circumstances. There have been a number of fascinating and protracted lawsuits regarding whether and the circumstances in which the website operators should be liable when they know about the infringement, they should have known, there were “red flags,” or they derived a financial benefit from the infringing material and could control the activity. These issues are likely to be continually litigated in the future, so they should be the subject of individualized legal advice based on the facts of the particular situation. This article is intended for organizations that are legitimately unaware of the infringement, or any red flags, and do not financially benefit from or have the right and ability to control the activity. If you are unsure where your website falls, this requires a more complex analysis, and is a potentially risky venture, and you should seek advice of counsel.
In short, without following the precise steps in Section 512(c) of the DMCA, your organization would simply not qualify for this safe harbor from strict liability for infringing material on your website posted by others and would likely be held strictly liable. Complying with the statutory requirements could serve to absolve you from liability and would be money well spent. We recommend that you make it a priority to ensure that you have posted the necessary Designated Agent notice, that you have a complete and accurate designation filed with the U.S. Copyright Office, and that you properly handle any effective notifications that you receive.