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Augmented Legality
BlogsPublications | December 10, 2014
3 minute read
Augmented Legality

You're Responsible for Copyright Infringement By Others on Your Website–Unless You've Done This

There's a common misconception among website owners that they are not responsible for content that others post on their website.  The truth is that, although it is possible for website owners to shield themselves from liability, there are certain hoops they need to jump through first. And if you don't take those steps before someone posts infringing content, you can find yourself on the hook for it.

The prerequisite step is designating a copyright agent for your website. The Digital Millennium Copyright Act (DMCA) establishes a "safe harbor" for website owners that protects them from liability for material that third parties post to the site. Specifically, 17 U.S.C. § 512(c)(1) provides that

A service provider shall not 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—
(i) does not have actual knowledge that the material or an activity using the material on the sustem or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing acivity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive 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; and
(C) upon notification of claim infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Importantly, however, 17 U.S.C. § 512(c)(2) says that websites can only claim this protection if they have designated a contact person to receive takedown requests, and listed that person's information on both the website itself and with the Copyright Office:

The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
(Emphasis added).

The filing fee for the designation form is approximately $150.

A July 2014 opinion in the case Oppenheimer v. AllVoices, Inc., a judge in the Northern District of California reiterated that website owners remain on the hook for third-party content on their sites, unless and until they comply with these agent designation requirements.

Have you designated an agent for your website yet?  It's a worthwhile step that can save you an enormous amount of time, expense, and headache down the road.