Internet Service Providers and the DMCA – Copyright Infringement Online
As large image-sharing websites proliferate, online copyright infringement is growing more common. What happens if you run a message board, and discover that one of your users is posting copyrighted material? What happens if you discover your own images, music, or books on such a website?
The Digital Millennium Copyright Act provides several ‘safe harbor’ provisions for four types of service providers, which shield them from liability for copyright infringement. To qualify for a safe harbor, a service provider must designate an agent with the copyright office, and must post an email address to which copyright owners can send takedown requests. Less well-known, however, is that a service provider which falls into one of these categories may lose their protection under two circumstances. Sometimes, a service provider must even take action against its own user, in order to remain protected from liability.
Who is a Service Provider?
Safe harbors apply to the following groups:
A. Providers who merely transmit, route, or connect to material;
B. Caching Services which temporarily store material;
C. Providers who store a user’s materials (message boards, website hosts, etc);
D. Search engines that link to materials.
Most service providers will fall into category C. If you run a website and want to make use of the safe harbor, you should file an Interim Designation with the US Copyright office. The form, directions, and samples of other service providers’ filings are located here. You will need to designate an email address to which copyright owners can send takedown requests, and publish that email address on your website. For more information about how the DMCA takedown process works, the article in Wikipedia is a good place to start.
When Can a Service Provider Lose its Safe Harbor?
A service provider can enjoy protection from copyright infringement liability, but only so long as it does not have actual knowledge that the material or an activity using the material is infringing. Additionally, a service provider will be disqualified from the safe harbors if it “receive[s] a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” 17 U.S.C. § 512(c)(1)(B); § 512(d)(2)
This means that if a website is informed that a user has posted copyrighted material, but does not promptly take it down, it may sacrifice the protection of its safe harbor. Additionally, if the website has the ability to control user-posted content *and* makes money from the copyrighted material – by selling advertisement space, for example, or by charging for membership – it may become liable.
The law does not provide a great deal of further guidance in this area. For example, how much notification is necessary? How much control must a website have, and how much money must it make, in order to become liable? The answers to these questions will vary by jurisdiction and by case. One thing is clear, however: skirting close to these boundaries can risk an expensive lawsuit. The safest option is to remove the material if it infringes, or to contact a copyright attorney.
Does a Service Provider Have to Take Action Against a User Who Posts Infringing Content?
What happens if someone sends you a DMCA request, and wants to know the identity of the user responsible for the infringement? One portion of the DMCA, 17 U.S.C §512(h), permits copyright owners to subpoena a service provider to obtain this information. If ordered by a court, the service provider must give up the user’s contact information. Failure to do so can make the website liable for the user’s infringement.
Additionally, service providers must have a system in place to terminate the accounts of ‘repeat infringers.’ 17 U.S.C. § 512 (i)(1)(A). However, the DMCA does not define the term ‘repeat infringer.’ Some commentators suggest that a court must determine that a user has infringed multiple times, in order for the user to be a repeat infringer. Cases have gone both ways on this issue, however, and so this is another area that could invite litigation. (1)
How Long Does a Service Provider Have to Remove Infringing Material?
Unfortunately, the law does not provide a definitive answer. Several sections of 17 U.S.C. § 512 state that a service provider must act ‘expeditiously’ to remove infringing material. (See, e.g., 17 U.S.C. § 512(c)(1)(A)(iii).) One court has found that taking material down on the same day as notice is received, or a few days thereafter, is expeditious (2). The exact number of days may depend on the size of the website, but if you plan to wait more than a few days to comply with takedown requests, it may be best to contact a copyright attorney in advance.
What Do I Do Now?
Copyright law can be complex, especially in this emerging area. The upside is that even owners of very small websites can be shielded from most copyright liability, by taking a few simple steps and responding promptly to legitimate takedown requests. If needed, a copyright attorney can help you put a system in place. In certain circumstances, however, copyright owners may be entitled to recompense for the unauthorized use of their copyrighted material.
1. Compare Corbis v. Amazon, 351 F.Supp.2d at 1105 n.9 (“[N]otices alone do not … conclusively determine that the user is an infringer.”); c.f. Perfect 10 v. CCBill, 340 F.Supp.2d 1077, 1088 (C.D. Cal. 2004) (multiple 512(c) takedown notices requires termination of the user under 512(i)), aff’d on other grounds, 488 F.3d 1102 (9th Cir. 2007).
2. Io Group v. Veoh Networks, 586 F.Supp.2d 1132, 1150 (N.D. Cal. 2008).
The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information here may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction.