The answer for most online businesses is yes. If your website allows users to upload content in any form then you would be a fool not to comply with the DMCA. Uploads include everything from music to photos to videos to even just comments. Part of the compliance process requires you designate a DMCA safe harbor agent.
Copyright Infringement Immunity
The DMCA is a controversial law. Enacted in 1998, the law creates an informal method for addressing copyright infringement online. A person who creates a fixed “work” – think of a photograph or book – owns the rights to the piece. Anyone who republishes the work without the permission of the copyright holder is liable for copyright infringement. The penalties can range from as little as $200 a violation up to $150,000 depending on the facts. The actual damage awards tend to be in the $750 to $30,000 range per violation.
The DMCA is a beautiful law for online businesses. The law contains a safe harbor provision that provides “Internet service providers” with immunity from infringement claims based on content uploaded by users. Websites, apps, hosts, are examples of Internet service providers.
DMCA Immunity Example
Consider Facebook. What if a person copies a photograph from a site and republishes it on their Facebook page? Is Facebook liable? Fortunately for Mr. Zuckerberg, the company cannot be sued so long as it complies with the DMCA. Unfortunately, the same is not true for the user.
The specific safe harbor language reads:
[17 U.S.C. 512(c)]
(1) In general. – A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider
Courts have interpreted “at the direction of a user” to mean a person has uploaded the content to a site. If a person uploads a video with copyrighted material to YouTube, the upload is done at the direction of a user, and the site is given a pass on liability.
DMCA Safe Harbor Agent
Is there a catch? Of course. You must comply with a list of requirements to gain the immunity. There are a number of steps that boil down to assisting the copyright owner and posting party with resolving the matter informally. One of the steps requires you to designate a DMCA safe harbor agent.
A DMCA agent is the person selected to receive complaints from copyright owners. The agent is listed on the website and in the public database of agents maintained by the Copyright Office. Facebook lists its agent here, for example. If you fail to designate an agent, you waive the immunity from copyright infringement claims. In 2015, an online business learned this painful lesson.
Celebrity Sites Lose DMCA Protection
The business consisted of a parent company and two subsidiaries or partners [it isn’t all that clear]. The companies published fan sites where users could post images of celebrities. The users uploading the content had copied nearly all the images from other sites – a copyright infringement boondoggle. If ever there were sites that need to make sure they were DMCA compliant, these were them. Sadly, two of the three companies failed to designate an agent.
In a lawsuit brought by a photographer for copyright infringement, the attorneys for the celebrity sites tried to argue the agent designation wasn’t required to maintain the immunity under the law. The judge correctly dismissed such claims. The judge found the companies waived the immunity. The photograph could sue the companies for infringement. The companies face hundreds of thousands, if not millions, of dollars in damages, and all because they did not designate an agent.
Do you need a DMCA agent? Yes. You can act as your own agent. If you prefer not to have your name, address, email address, phone number, and fax number listed publicly, you can use a service such as ours to act as your agent. Whatever you do, make sure you have someone in place to take advantage of the immunity provided under the law.
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