Preserving DMCA Infringement Immunity for Website Owners: You're Doing it Wrong

The Digital Millenium Copyright Act of 1998 amends Title 17 of the US Code, ie, the US Copyright Act, to create a safe harbor for "online service providers" (defined, essentially, as providers of online services and websites offering unmodified third party content) against copyright liability in certain circumstances. Namely, such service providers will not be liable for infringing content posted on their sites if the service providers adhere to prescribed safe harbor guidelines and promptly block access to or remove infringing materials upon receiving notification of infringement form the applicable copyright holder.  This DMCA safe harbor immunizes the site operator from liability if the operator complies with the takedown procedures specified in section 512 of the Act. Surprisingly, many prominent sites are apparently failing to follow these requirements and are consequently exposed to the risk of losing this DMCA immunity.

These requirements include the designation of an agent for purposes of receiving notices of copyright infringement, and making available through the operator's site the contact information for this agent.  Section 512(c) of the Act is quite specific about what is required to be posted:  the name, address, phone number and email address of this agent.  Further, this section requires that this information also be submitted to the US Copyright Office, which maintains a public database of these agents and their contact data.  Failing to comply with these requirements means the website operator loses the infringement immunity afforded by the DMCA.

It's amazing how many websites fail to follow these procedures.  Many sites with massive viewership fail to include any designated agent information whatsoever, such as for example TechCrunch.  Other sites fail to provide all of the required information, with missing phone numbers, addresses, or both, and/or have failed to register with the US Copyright Office; see eg LawLink and Quora.

Every provider of online services and every site that offers third party content should include something like the following in their site's "Terms of Use" or other similar prominent and conspicuous text:

DMCA.  If you believe that your work has been copied and is accessible on this site in a way that constitutes copyright infringement, you may notify [website owner] by providing our copyright agent with the following in writing:

                  a)              identification of the copyrighted work that you claim has been infringed;

                  b)              identification of the material that is claimed to be infringing and information reasonably sufficient to permit [website owner] to locate the material;

                  c)              your name, address, telephone number, and email address;

                  d)             a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

                  e)              a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.

The above writing must be electronically or physically signed by you.  If [website owner] receives such a claim, [website owner] may refuse or delete the applicable content as described under this section hereto, or to terminate a user's account in accordance with these Terms.  [Website owner's] designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 is _____, phone number _______, address ________, and can be contacted via email at ______.

And, this same information should be submitted to the Copyright Office via its "Interim Designation of Agent to Receive Notification of Claimed Infringement", which can be found here.  A filing fee of $105 is required as well.

Unless, of course, the site operator doesn't care about preserving infringement immunity for content over which the operator had no control in its creation ....

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