The answer for most online businesses is yes. If your website allows users to upload content in any form including images, video, comments, reviews, etc., then you would be a fool not to comply with the DMCA. Part of the compliance process requires you designate a DMCA safe harbor agent.
Copyright Infringement Immunity
The DMCA is a controversial law. Passed in 1998, the law is designed to create an informal method for addressing copyright infringement in the online environment. 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 in a manner that doesn’t constitute fair use [news, criticism, etc.] is liable for copyright infringement. The penalties can range from as little as $200 a violation up to $150,000 depending on the particular facts of the case. 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, Internet-connected apps, hosts, and even some software providers are considered Internet service providers.
Consider Facebook. If a person copies a photograph from a site and republishes it on their Facebook page, Facebook is not liable for infringement so long as it complies with the DMCA. The person who posted the image can be sued, but not Facebook, because of the safe harbor language that reads:
(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, but providers often forget they also need to designate a DMCA safe harbor agent.
A DMCA agent is the person designated 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, then you waive the immunity from copyright infringement claims. In 2015, an online business learned this painful lesson. The business consisted of a parent company and two subsidiaries or partners [it isn’t all that clear] that published fan sites where users could post images of celebrities. Nearly all these images were copied from other sites, which created a copyright infringement boondoggle. If ever there were sites that need to make sure they were DMCA compliant, these were them. Pity, then, that two of the companies failed to designate an agent until after learning they were going to be sued.
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 and ruled the sites could be held jointly liable with their users who posted the celebrity images. With infringement clear, the companies face hundreds of thousands, if not millions, of dollars in damages. All because they did not designate an agent.
Do you need a DMCA safe harbor 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.