Protecting Yourself Against Copyright Claims Based on User Content

If you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law. Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims under the Digital Millennium Copyright Act (DMCA), as long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing.  This page explains how this important law works.

Section 512 of the DMCA contains what are called the "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright-infringing material from other online sources, as long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing. Section 512 has a somewhat confusing structure; if you are interested in navigating the language of the statute, this paper from Fenwick & West LLP attempts to lay out the terms of section 512 in a more logical fashion.

You are not legally required to comply with the safe harbor provisions of section 512, but doing so may help you avoid copyright infringement liability. The sections below address those provisions of section 512 that may apply to you and discuss what you need to do in order to take advantage of the safe harbor provisions.

Storing and Linking to Copyrighted Content: Sections 512(c) and (d)

There are two safe-harbor provisions that potentially apply to your online publishing activities.

The first safe-harbor provision relates to materials posted to your blog or website at the direction of a user. This could include a file (e.g., a photograph, a film clip, an audio file) that a user posts to a comment section on your site or to a forum thread. (There are many other potential examples, the important thing is that the material is posted by another person, not you). This safe-harbor provision is found in section 512(c), and it states that, as the administrator of a website or other service, you will not be held liable for money damages for infringing content posted "at the direction of a user," as long as you

  • do not have actual knowledge that there is infringing content on your servers, or know any surrounding facts that would make the infringing use apparent;
  • do not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity; and
  • act expeditiously to remove or disable access to the infringing material upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement (more below).

The second safe-harbor provision relates to links you post to other online material located elsewhere. This safe-harbor provision is found in section 512(d), and it states that an online service provider will not be held liable for money damages "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." (emphasis added). If you linked to material without knowing that it infringed copyright, the language of this section appears to relieve you of liability, as long as you

  • do not have actual knowledge that the material you linked to is infringing, or know any surrounding facts that would make the infringement apparent;
  • do not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity; and
  • act expeditiously to remove or disable access to the infringing material (such as by taking away the link) upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement (more below).

These safe harbor provisions could be valuable protections for you as a website operator, but in order to take advantage of them, you have to meet a few further administrative requirements.

Note: the existence of the safe-harbor provisions does not imply that you will be held liable for copyright infringement if you opt not to use the safe harbors. Rather, your liability will depend on the independent principles of direct and secondary infringement. For details, see the Chilling Effects FAQ about Copyright - What constitutes copyright infringement? and its FAQ about DMCA Safe Harbor Provisions - What is third-party liability, also known as secondary liability?

Administrative Requirements for Safe Harbor Protection

There are a few additional administrative steps that you need to take before you can enjoy the benefits of the safe-harbor provisions. These steps seem complicated at first, but in fact do not require a significant amount of effort or cost in order to comply with them. The steps are as follows.

1. Designate a Copyright Agent to Receive DMCA Takedown Notices

The U.S. Copyright Office maintains a list of designated agents to receive notices of claimed copyright infringement. This list enables copyright owners who believe that their work is being infringed to send complaints or "takedown notices" to internet service providers hosting or linking to the disputed material. You need to designate an agent, which can be you or someone else who agrees to do it, in order to take advantage of the DMCA safe-harbor provisions. To do this, you file an Interim Designation with the United States Copyright Office, along with an $105 filing fee.

2. Adopt and Communicate to Users a Copyright Infringement Policy

In order to qualify for the safe harbor protections, you must also publish a statement on your site giving notice to your users of your DMCA agent's contact information and your policies regarding copyright infringement and the consequences of repeated infringing activity. The notice can be a part of the website's terms of use or some other notice displayed prominently on the site. For more on terms of use, see the Terms of Use and Website Privacy section for details. The statement should explain that you respond expeditiously to notices of claimed copyright infringement andterminate users or account holders who are "repeat infringers." If you have no subscribers or account holders, your policy may state "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user."

You may want to include a statement detailing the proper form for a notice of claimed infringement, which must include:

  • a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed copyright;
  • identification of the copyrighted work or works claimed to have been infringed;
  • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
  • information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address);
  • a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and
  • a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner.

17 U.S.C. § 512(c)(3)(B) states that if a complaining party does not substantially comply with these requirements, its notice will not serve as "actual notice" for the purpose of Section 512. Your policy statement should also include a statement explaining the procedure for users of your site to make a counter-notification (discussed below).

3. Properly Comply with a Notice of Claimed Infringement When Received

You may from time to time receive a notice of claimed infringement from a copyright owner, alleging that content on your site infringes the holder's copyright. Such a notice must comply with the form outlined above. Once you verify that a copyright notification substantially meets these formal requirements, in order to qualify for the safe harbor, you are required to:

  • expeditiously remove or disable access to the material that is claimed to be infringing (there is little guidance on what counts as "expeditious");
  • notify your user or subscriber that the material has been removed so that they may file a counter-notice should they wish (you are not required to notify the user before removing the material);
  • if proper counter-notice is provided, notify the copyright holder and provide a copy of that counter-notice; and
  • if proper counter-notice is provided and if the copyright holder does not file suit within 10 business days, restore the removed material.

For information on the content of a proper counter-notice or if your content has been removed by your service provider as a result of a DMCA takedown notice, see Responding to a DMCA Takedown Notice Targeting Your Content

A Warning: Not Every Cease-and-Desist Letter is a DMCA Takedown Notice

The DMCA gets a great deal of attention in discussions of online speech, especially in technical circles. This attention is warranted, and vigorous debate about this controversial provision of the Copyright Act is necessary. But it is important to remember that other legal issues may also affect your online activities. The DMCA safe-harbor provisions apply only to claims of copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims alleging misappropriation of trade secrets, to name just a few of the possibilities. This means that you cannot insulate yourself from liability on one of these other claims simply by "expeditiously removing" the disputed content. In many situations, you may be protected by section 230 of the Communications Decency Act for publishing the statements of your users. See the Primer on Immunity -- and Liability -- For Third-Party Content under Section 230 of the Communications Decency Act for details on this provision.

Website and blog operators get cease-and-desist letters based on non-copyright claims with some frequency. You should not assume that every threatening letter you receive is a DMCA takedown notice -- you need to look at the precise allegations and legal claims made in the letter and evaluate your next steps from there. It is not sufficient, for example, to conclude that a cease-and-desist letter relating to defamation or trade secrets law is somehow "defective" because it has not met the formal requirements for a notice of claimed copyright infringement under section 512. This will only muddle your thinking and could potentially exacerbate a delicate situation. For more on what to do if you receive a cease-and-desist letter, consult the Responding to Correspondence Threatening Legal Action section. For more on the confusion between other kinds of cease-and-desist letters and notices of claimed infringement, see our blog post, Not Every Cease-and-Desist Letter is a DMCA Takedown Notice.

This confusion may also work in reverse. There may be times when you receive a DMCA takedown notice for material that is technically not eligible for safe-harbor treatment, such as material you posted yourself. If it satisfies the complaining person that you take the material down, and you have no serious objection, you might want to do so.

A Specialized Question: What About Embedded Video?

It is becoming more and more common to embed videos from other online sources into an article or post in order to illustrate a point or get a laugh. This raises the question of whether you could be held liable for embedding an infringing video on your website or blog. The technical point to keep in mind is that an embedded video is just a link. So, there is no copy of the video being stored on your server, just the HTML code for the embed. Therefore, you may be able to claim the protection of the safe harbor found in 17 U.S.C. § 512(d), discussed above. For details see our blog post, Embedded Video and Copyright Infringement.

 

Last updated on May 17th, 2012

   
 
Copyright 2007-13 Digital Media Law Project and respective authors. Except where otherwise noted,
content on this site is licensed under a Creative Commons Attribution-Noncommercial-ShareAlike 3.0 License: Details.
Use of this site is pursuant to our Terms of Use and Privacy Notice.