Website Owners: The Rules for Protecting Yourself from Copyright Infringement Liability Just Changed

Posted July 18, 2017.

In business, your company faces many risks. If you try to manage every risk, you won’t have time or money left to make your product or provide your service.

You have to decide which ones to address and how much to pursue them.

With that in mind, consider a new legal risk to any business with an online presence: the federal Copyright Office just changed the protocols you have to follow to protect your business from potential copyright infringement liability for material posted or transmitted online by others.

Some background:

If you have a website and allow others to post content on it, you could be liable for any copyright-infringing material posted. You also could be liable if you provide the means for others to digitally transmit copyright-infringing material, such as being an internet service provider.

To encourage technological development, in 1998, the federal Digital Millennium Copyright Act (DMCA) was enacted to shield providers of online services, such as website operators and Internet service providers, from money damages for copyright infringements that pass through their systems, but only if those providers set up mechanisms for addressing copyright-infringement allegations.

To take advantage of this DMCA safeharbor, one thing you must do is file a notice with the Copyright Office of who your “designated agent” is to receive copyright-infringement claims. You also have to post that information on your website.

The Copyright Office recently changed the rules for establishing a designated agent. Companies that previously filed a designated-agent notice with the Copyright Office have until the end of 2017 to make a new kind of designation filing. Going forward, new filings must be made every three years.

Before going deeper into the weeds, let’s assess whether it’s worth it for your company to pursue this issue:

If your company provides digital content services, such as cloud-based services, you should have tackled this issue long ago and need legal help ASAP.

If your company does not provide such services and does not allow anyone else to post material on its website or other electronic presences, you probably can ignore this issue.

Left for consideration are businesses that allow others to post reviews or other comments on their websites or provide message boards.

Regarding reviews and comments, this issue concerns sites you operate yourself. It does not apply to reviews and comments on other sites, such as Yelp, Trip Advisor, and Amazon.

For such businesses, whether to tackle this issue depends upon risk tolerance.

If you permit reviews and comments on your website, hypothetically, someone could post something that is someone else’s copyright property.

That risk should be low. Most people write their own reviews and comments because they either want to vent frustrations or glorify a great experience. Even if someone copies a review or comment, one wonders whether the person who wrote the original comment or review would care enough to take action. Maybe a professional food or film critic would.

If others can post pictures on your website, that raises the risk. Image-rights management companies, such as Getty Images and Corbis, police unlicensed use of their stock pictures. While use of any such material in a review or comment might be protected by a legal concept known as “fair use,” having to fight the licensing company might become time-consuming and expensive.

Message boards also are risky. People love to paste news and commentary articles, including ones from behind paywalls.

Sometimes copyright owners of such material take legal action. One law firm tried to make an industry out of suing people who copied and pasted newspaper articles.

If you decide to address this issue, you’ll have to get legal help. You probably could figure out how to file your notice of “designated agent” with the Copyright Office. That’s online and fairly simple.

But you would have to do a lot more to take advantage of the DMCA safeharbor. Among other things, you have to set up a written copyright infringement policy and a repeat-infringer policy, post certain policies and contact information on your website, and establish protocols for expeditiously acting upon infringement complaints received.

Hopefully this information enables you to decide whether to dig deeper into this issue or let it go. Good luck.

Written on July 18, 2017

by John B. Farmer

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