January 2011

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.

Beware "Work Made for Hire" Language in Independent Contractor Agreements

Technology companies, particularly early-stage startups, often meet staffing needs with independent contractors rather than employees.  Such personnel are commonly hired via written independent contractor agreements that make clear that because they are not employees, they are not entitled to the benefits or privileges available to employees under California's employment laws, including unemployment insurance, health benefits, or the like.  Independent contractor arrangements can be mutually beneficial to the contractor and the startup, affording greater flexibility and ease of administration.  However, to the unwary and unitiated, such agreements can be problematic, particularly in the context of retaining individual software developers in California.

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