Protection for infringing material posted by others: DMCA safe harbor provisions

Your liability for content posted to your site by third parties is not limited to defamation. Rather, if you publish the expressive works of others without their permission, you could be liable for copyright infringement. Much like it did in adopting Section 230 of the Communications Decency Act, though, Congress adopted legislation that protects online service providers from liability for money damages for infringement when the service providers merely transmit or temporarily store digital information for their subscribers.

Section 512 of the Digital Millennium Copyright Act contains what are called the “safe harbor” provisions for online service providers. These provisions may shield you from liability for the copyright infringements of your site’s users and for your provision of links to copyright-infringing material from other Internet sources as long as you have 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 posted material is infringing.

Two provisions of Section 512 are potentially relevant to your online publishing activities. Under 512(c), you are not liable for money damages for user-generated content that infringes another copyright as long as

• you are not aware of any infringing content on your site nor know of any “red flags” that would make an infringement apparent;

• you do not receive a financial benefit directly attributable to the infringing activity if you have the right and ability to control that activity; and

• you act expeditiously to remove the infringing content from your site once you have received proper notice of the infringement.

Note that this protection extends only to service providers who merely transmit or temporarily store digital information for their subscribers. If a service provider selects or alters the content, for example, he or she will likely have to pay the copyright owner monetary damages for the infringements of others.  

While Section 512(c) applies to material posted by other users, Section 512(d) shields online service providers themselves from money damages for copyright infringement that occurs when they refer or link users to an online location containing infringing material. That is, if you link to material without knowing that it infringed another’s copyright, you are not liable as long as

• you are not aware that the material you linked to is infringing nor know of any “red flags” that would make the infringement apparent;

• you do not receive a financial benefit directly attributable to the infringing activity if you have the right and ability to control that activity; and

• you act expeditiously to remove access to the infringing material from your site, most likely through removal of the link, once you have received proper notice of the infringement. (The Citizen Media Law Project points out that if a complaining party does not include several pieces of information statutorily required to appear in the notice, such as information reasonably sufficient to permit the service provider to contact the complaining party for example, such notice will not serve as "actual notice" for the purposes of Section 512. 

These safe harbor provisions could provide valuable protection to you as a web site operator. In order to take advantage of them, however, you must comply with three administrative requirements:

• You must designate an agent, usually yourself though it may be someone else who agrees to do so, to receive notices of claimed copyright infringement. Your agent must provide up-to-date contact information so that copyright owners who believe their work is being infringed on your site can send complaints or take-down notices to him or her. To designate an agent, a procedural requirement for protection under the DMCA safe harbor provisions, you must file an interim designation with the U.S. Copyright Office and submit a $105 filing fee.

• You must publish on your site your policy for addressing repeated infringing activity, specifically a statement that you terminate 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.” Including the policy statement in the web site's terms of service or privacy agreements makes logical sense, though it may be published elsewhere on the site. 

• You must properly comply with a notice of claimed infringement when received, including

• the expeditious removal of the material that is claimed to be infringing;

• notification to the user or subscriber that the material has been removed;

• notification to the copyright holder if proper counter-notice is provided by the user or subscriber; and

• restoration of the removed material if proper counter-notice is provided, and the copyright holder does not file suit within 10 days.

Both the Citizen Media Law Project and Electronic Frontier Foundation provide additional useful information about protection from liability for money damages for copyright infringement under the DMCA safe harbor provisions.