The DMCA provides in section 17 U.S.C. section 512(c) several “safe harbor” provisions for service provider's connection to infringing online materials. These safe harbor provisions are usually applicable when a service provider is either unaware, unable to be aware, or unable to regulate the content that is being transmitted or shared. However, the DMCA safe harbor provisions were initially intended to protect for Web Hosts and service providers, and not necessarily the web sites themselves, but that was before the introduction of user content based websites such as YouTube, Myspace, Craigslist, and many others.
However, the DMCA does require that service providers adopts and utilizes policies to both terminate repeat infringers and apply standardized acceptable procedures in the prevention of copyright infringement.
If you are planning on developing, operating, or maintaining a website which authorizes, encourages, our utilizes user generated content, there several things which one should take into account in regards to protecting yourself from law suit.
1. Ensure that your website and its use falls under the specifications of the DMCA “safe harbor” provisions, whether that be section 512(c) or any other provision.
2. Develop a policy and procedure in which the website is able to remove content which has been flagged as infringing material and notification of both the content provider and the user who submitted the infringing material.
3. Let your site take its natural course. In other words, it would behoove the website owner to minimize the control of material submitted by users on the website. The more control the Owner and maintainers of a website exert, the more the owner/maintainer will be responsible for the content which users upload.
4. Do not target any revenue generating plans at infringing or potentially infringing content. One of the major downfalls of Grokster were the advertisements which encouraged users to infringe on copyrighted materials.
5. Do not directly infringe either by content posted by the owner or maintainer of the website, or encouraged. If you encourage infringement or post the content yourself, it is more likely that a court will deny any “safe harbor” provision protections.
6. Attempt to the largest degree possible the licensing of content from providers. The more licensing agreements a website is able to sign, the less likely someone will bring suit.
Please consult an attorney for any specific advice in regards to the DMCA, or Website Compliance.
*This article was written by Jeffrey C. Neu, Esq. an Internet and Technology Lawyer in New Jersey.