Game lawyer Zachary Strebeck looks at one potentially huge mistake that website owners and mobile game developers could make regarding the DMCA. Without registering an agent to receive takedown notices, they could end up liable for their users’ infringmen
Everybody’s favorite law, 17 USC Section 512(c) (otherwise known as the Digital Millenium Copyright Act) contains a safe harbor for Internet service providers, such as website owners, mobile app developers and others, against the copyright misdeeds of their users. However, there are some requirements in this law that site owners may not know about. Failure to comply could remove that safe harbor and make them liable for their users’ infringements.
I’ve written about the DMCA takedown process a few times here on this blog, from the perspective of the copyright holder and the user. The big part of the safe harbor, however, is the avoidance of liability for the website owner themselves. Having this shield, along with a properly-written Terms of Service, can do a lot to avoid liability for these infringements.
Recent court decisions involving video sharing services YouTube and Veoh contain some good advice regarding “actual” or “red flag” knowledge of infringement and should be read by anyone who is thinking of starting a site that has users and user-generated content.
Let’s look at the requirement that the site owners themselves must comply with.
When infringing content is found on a website, the owner of that content must have a place where they can send the official takedown notice. 512(c)(2) requires that the Internet Service Provider designate an agent to receive these copyright takedown notices. Without that agent, the process breaks down and the ISP may be liable.
It’s pretty simple, but that doesn’t make it any less important. Two things must happen before the agent is officially “designated”:
The contact information for sending the takedown notices must be registered with the U.S. Copyright Office; and
This contact information must also be made available on the ISP’s website for all to see.
See? That isn’t so tough. The proper information must be provided to the proper parties, in order to make the sending of a takedown notice possible. Once registered with the Copyright Office, the ISP’s agent will be kept in a database. The Terms of Service should also be set up in such a way that it is accessible to the end user (and should create a valid contract, as I talk about here, here and here).
If you are starting up a website, particularly one that contains user generated content, virtual currency or some other potential liability maker, why not consult with an attorney? This could end up saving a lot of trouble in the end should things go wrong.
photo credit: jenny downing via photopin cc
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