Asked & Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: I heard that the law protects my online news site from being sued for copyright infringement. Is that true?

A: Federal law provides important protections that shield website operators from copyright infringement liability, though the safeguards are limited to certain circumstances and the website must meet certain requirements. The “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) provide website operator immunity for copyright infringement when a user of the website uploads content that infringes another’s copyright.

The DMCA’s protections apply to all qualifying websites that host user content, including sites such as YouTube and news websites that allow users to upload content, such as through online comment boards.

The DMCA sets up a system by which copyright owners can request to have material they believe to be infringing removed from websites while at the same time allowing website operators to avoid potential liability for the actions of users. It is important to note, however, that the DMCA’s shield from infringement liability only applies to content uploaded by third parties. In other words, the DMCA does not protect a website operator or publisher from direct copyright liability if they post infringing content. At the same time, the DMCA protects website operators from liability for linking to other websites that contain infringing material, so long as the website operator isn’t aware of the infringement.

To establish protection under the DMCA’s safe harbor provisions, a website operator must meet several requirements. First, the website operator must create a copyright infringement policy that tells users of the site that the website will comply with the DMCA, meaning that it will remove infringing content uploaded by a user. The policy must also discuss how users who repeatedly infringe copyrights will be terminated from using the site. The policy must be in a public place on the website where users can access it, with many website operators including it within a site’s terms of service or terms of use.

Second, the website operator must designate an agent to receive notifications from copyright holders who believe users have infringed their work. The DMCA requires website operators to register their agents with the U.S. Copyright Office, which costs $105, and to publicly display the contact information for the agent on their website. For more information about how to register an agent with the Copyright Office, visit http://www.copyright.gov/onlinesp/.

Finally, to maintain the DMCA’s safe harbors and avoid liability for the infringing activities of users, website operators must respond to a notice of infringing activity and remove the material from the website within a reasonable amount of time. Removing the content after reviewing the notice of alleged infringement maintains the protection of the DMCA safe harbor.

The DMCA also allows users who believe their content was improperly removed in response to a takedown notice to file a counter notice arguing why the uploaded content does not infringe copyright. Under the DMCA, the website operator is then required to notify the copyright holder who submitted the initial claim about the counter notice. The website operator must then put the removed material back on the website within 14 business days unless the copyright holder notifies the website operator that it has filed suit against the user.

Q: If a document is entered into public evidence in a criminal trial, may I ask the court to view it?

A: In 1978, the Supreme Court recognized that the public has a general right to inspect and copy judicial records and documents. In Nixon v. Warner Communications, the high court confirmed this right and applied it to news organizations that wanted to obtain and broadcast the Watergate tapes.

The court said this right was based in the common law, rather than the First Amendment, but federal and state courts throughout the country have affirmed this right. The U.S. Court of Appeals in New York (2nd Cir.), for example, has said that once information has been publicly presented in court, only “the most extraordinary circumstances” can justify denying non-attendees from copying the information.

The logic behind the access right is that once documents, footage, or information has been aired in open court, the rights to privacy diminish, as one of the features of a public courts system is also public evidence.

Rather than a threat to privacy, at least one federal court has said that broadcasting videotaped trial evidence to a large audience is not a threat to the judicial system but instead enhances and contributes to the public’s understanding of such proceedings.

Most courts take a very permissive view toward public access to evidence in criminal trials, but there are exceptions. Some appeals courts have given wide latitude to trial judges who make decisions over whether the public and media may access court documents and evidence. In some cases where trial courts have denied access, it has been upheld on appeal as falling within a trial judge’s discretion.

Courts may not deny such requests by falling back on the public’s freedom of information rights, which are created entirely by statutes and do not apply to the courtroom. Judges may not require third parties to use freedom of information act requests to gain access to criminal evidence, simply because the laws governing those requests apply to agencies, not the judiciary.

Some state laws also protect the right of public access to trial records. In Rhode Island, for example, the state supreme court held that any restriction on public access must be the only reasonable alternative and narrowly tailored to privacy interests, while still allowing access to parts of the record not deemed sensitive. The trial judge restricting such access there must also give specific findings in support of such an action.

Q: Who is ultimately liable for defamatory content posted by readers in the comments section of a newspaper website?

A: Newspaper publishers are generally not responsible for libelous information posted by their readers in a comments section unless the newspaper itself exercises some sort of editorial control over that content.

Section 230 of the Communications Decency Act of 1996 provides website and Internet service providers with immunity from liability resulting from comments posted by readers and other users of the website.

However, there are ways that this protection can be lost. For example, news website operators lose the immunity protections of Section 230 if, rather than merely posting comments provided by third parties, they create the online postings, extensively edit submissions provided by readers or incorporate the comments into subsequent news stories.

For example, a federal appellate court in California held that the roommate-matching web site Roommates.com was protected from liability for comments posted by its users when it provided open fields for their “additional comments.”

The site lost Section 230 immunity, however, when it provided “drop-down” menus with answers for users’ responses.

Because the website operators cannot be held liable, plaintiffs often attempt to subpoena the operators to compel the disclosure of the identity of individual posters so they could file suit. States have different standards as far as how much proof a plaintiff must show to allow such disclosure, and some news organizations choose to fight such subpoenas.

In February 2012, Indiana became the most recent state to have a court adopt the so-called Dendrite test for determining when a potential defamation plaintiff may require a website to turn over the identity of an anonymous commenter.

First developed by the New Jersey Superior Court, the five-part test allows courts to grant disclosure of an anonymous poster’s identity if (1) the plaintiff makes efforts to notify the anonymous poster and allow a reasonable time for him or her to respond; (2) the plaintiff identifies the exact statements made by the poster; (3) the complaint sets forth a basic cause of action; (4) the plaintiff presents sufficient evidence for each element of the claim; and (5) the court must balance the defendant’s First Amendment right of anonymous free speech against the plaintiff’s need for disclosure and the strength of the plaintiff’s case.

Other states, such as Virginia, have set a lower bar for plaintiffs, and ordered the release of the identities of anonymous commenters as long as the plaintiff believes in good faith that he or she has been a victim of defamation. The strength of a potential plaintiff’s case can influence a publication’s decision whether to fight the subpoena. Publishers should know their respective state’s governing law on disclosure of online identities to determine the standards of proof a plaintiff must show in order to allow for fully informed decision-making.