Editor’s note: TechLaw is a regular weekly feature in WRAL Local Tech Wire. Angela Doughty is a member of Ward and Smith, P.A.
RALEIGH, N.C. – Every day online service providers such as YouTube, eBay, and MySpace receive, copy, store, and distribute vast quantities of electronic material on behalf of their customers, all without control over or knowledge of the content of that material.
The availability of such services in this online era is important for personal and business use of the Internet, but, unfortunately, it also enhances the ease of unauthorized uses of copyrighted works. Copyright holders are rightfully concerned about the ease of posting their materials on such sites, as well as the significant amount of infringing material being posted. What liability is there on the part of the online service providers, and what protections are there for copyright owners?
Copyright Protection
In general, copyright law provides copyright owners with the exclusive rights of reproducing (making copies or authorizing others to make copies), displaying, and distributing their protected work, and creating similar works based on the original. The Digital Millennium Copyright Act (“DMCA”) provides a shield to online service providers from potential liability for infringement of these copyrights.
The DMCA
The DMCA provides qualifying online service providers with a "safe harbor" from liability for copyright infringement if the providers undertake the actions specified in the Act.
Specifically, any copyright owner who thinks an online service provider’s services are being employed by a user to transmit, copy, store, or distribute material infringing on the owner’s copyright can send that online service provider written notification of the infringement ("Notification"). This Notification must be verified by either the copyright owner or the copyright owner’s authorized agent and must include: (i) identification of the infringed work; (ii) identification of the material which is alleged to be infringing; (iii) the copyright owner or agent’s contact information; (iv) a statement that the complaining party has a good faith belief that the use of the material is infringing; (v) a statement that the information in the notification is accurate; and (vi) a physical, electronic, or digital signature of the copyright owners or the copyright owner’s authorized agent.
After receipt of a Notification, the online service provider must immediately remove or disable access to the material alleged to be infringing. It then must take reasonable steps to inform the person who originally posted the material ("user") of the Notification, and that it has removed or disabled the material.
Generally, if an online service provider abides by the above take down procedures, it will not be liable to any person for any claim based on its good faith removal or disabling of material alleged to be infringing regardless of whether the material is determined ultimately to be infringing.
What Happens if the User Objects?
Upon receipt of the communication advising it of the Notification and of the removal or disabling of the allegedly infringing materials, the user then may assert his or her legal rights in the removed or disabled materials and submit a counter notification ("Counter Notification"). The Counter Notification must: (i) be signed by the user; (ii) identify the material that has been removed or disabled; (iii) provide the user’s contact information; (iv) contain a statement that, under penalty of perjury, the user has a good faith belief that the removed material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (v) contain a physical, electronic, or digital signature of the owner of the copyright allegedly being infringed or of an authorized agent of the copyright owner.
After receipt of the Counter Notification, the online service provider has ten days to notify the original complainant of the Counter Notification. The original complainant has 14 days thereafter to file a copyright infringement suit in federal court against the user. If no suit is filed, the online service provider must restore the removed or disabled material.
Possibility of Subpoena
In addition to the Notification, a copyright owner or its agent also may request that a federal court issue a subpoena to an online service provider for the identification of an alleged infringer. The subpoena likely will authorize and order the online service provider to disclose immediately to the copyright owner or its agent information sufficient to identify the alleged infringer described in the Notification to the extent such information is available to the online service provider. In general, the online service provider should comply promptly with any and all requirements or requests encompassed in the subpoena.
Which Online Service Providers are Eligible for the Safe Harbor?
The DMCA uses the term "online service provider" to mean an entity offering the transmission, routing, or provision of connections for digital online communications between or among points specified by a user, of material of a user’s choosing, without modification to the content as sent or received; a provider of online services or network access; or the operator of facilities thereof. Thus far, the courts have interpreted the term online service provider broadly to include traditional internet service providers (ISPs), websites which serve as mere conduits of information such as bulletin boards and chat rooms, online auction sites, age-verification services sites, and online services which process payments from online merchants.
To take advantage of the DMCA safe harbor provisions, the online service provider must fall into one of the following classifications: (i) transitory communication services (chat rooms, bulletin boards, etc.); (ii) system caching services (storing or collection of information); (iii) storage of information services whereby the information is stored on systems or networks at the direction of the user; or (iv) information location tool services (online directories, search engines, etc.).
In addition, the online service provider must: (i) have a policy which provides for the termination of any user’s account if the user repeatedly engages in acts of infringement; (ii) inform all of its users of this policy; (iii) designate an agent to receive notice of infringement claims, make the name and address of that agent available to the public through its service (including through its website), and register the agent with the U.S. Copyright Office; and (iv) have a process to accommodate standard technological measures typically used by copyright owners to identify or protect their works (e.g., digital water marks).
If an online service provider does not qualify for protection under the DMCA safe harbor, it still may escape or limit its liability by invoking any other available and applicable affirmative defenses to the alleged copyright infringement.
Summary
In a nutshell, the DMCA provides a quick way for copyright owners to stop infringement and, at the same time, allow electronic commerce to continue by providing a safe harbor to protect online service providers that are unaware of infringing material posted on their sites. In order to take advantage of these protections, however, online services providers must respond promptly to Notifications, Counter Notifications, and subpoenas. Receipt of any DMCA Notification and Counter Notification must be taken seriously by online service providers, as failing to take action will jeopardize the online service provider’s protection under the DMCA safe harbor.
Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Angela Doughty’s practice focuses on the representation of clients in copyright and trademark matters, including the preparation and filing of copyright and trademark applications; the design and use of trademarks; and the sale, transfer, and licensing of intellectual property rights. Comments or questions may be sent to apd@wardandsmith.com.
