Many individuals, companies and non-profits now have “blogs” where they invite comments and questions from readers. Most of those operating blogs and other websites seem unaware that they could be subject to suit for copyright infringement if materials posted by others are alleged to violate the exclusive rights of copyright holders. Many bloggers have fallen prey to these suits when comments posted contain quotations from news articles, song lyrics, or video clips. Hundreds of these suits have been settled out of court for thousands of dollars, each, while those who choose to go to court often spend tens of thousands of dollars to defend themselves – usually without success.
United States Copyright Law contains a provision to protect a blog owner or other site or network operator from such law suits. Known as the “safe harbor” provision of the Digital Millennium Copyright Act (“DMCA”, 17 U.S.C. §512), this law provides for a series of notices and counter-notices that effectively let a blog owner “duck” while the copyright owner and pirate lob cannonballs overhead. To be able to use the safe harbor, however, blog operators and others must follow the notice and registration requirements of the law.
Because most blogs allow readers to post comments and other responsive materials, the owners of the blog is not just a publisher of content, but is also a “service provider” subject to the terms of the Digital Millenium Copyright Act (DMCA).
The DMCA allows anyone whose copyrights have been infringed to issue a “takedown notice” to the service provider of a site containing the materials. The notice, found at Section 512(c)(3), must be quite specific, and must include:
- The name, address, and electronic signature of the complaining party;
- The infringing materials and their Internet location, or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials;
- Sufficient information to identify the copyrighted works;
- A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of; and
- A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner.
Upon receiving the takedown notice, the service provider must take prompt action to disable access to or to remove the identified materials, and then to give notice to the person who posted the materials (if that person can be identified.)
The person who posted the materials removed after the notice may then, under the DMCA, provide a “counter notice” found at section 512(g)(3).
If the counter notice is given, then the service provider must reverse its takedown and restore access to the materials. After counter notice, the copyright owner has 14 days in which it must file an infringement law suit if it wants the materials to remain off the Internet.
So, you may ask, “What, exactly, does all of this complicated legal mumbo-jumbo have to do with me?”
Good question, Binky! Stay tuned for next month’s installment to learn what you should do to steer into that safe harbor, and away from both the pirates and the lawyers.
–Lawrence A Husick, Esq.