By: Brian J. Meli
If you make your living providing online content (read: publishing, entertainment, advertising, design, photography etc.) you’re already well aware that you can’t profit from someone else’s creative efforts without their permission. While you may find the intricacies of the various forms of intellectual property law elusive, it’s nevertheless likely you have a general grasp on the notion that it’s not ok to reproduce someone else’s images, songs, articles, or videos unless your compensating them for the right to do so. If you don’t understand that, you either aren’t in the online content business or you won’t be for very long.
Copyright law, at its heart, and despite the best efforts of judges and lawmakers to make you forget, is based on a simple premise that anyone who’s eclipsed the age of reason can understand: If it doesn’t belong to you, you can’t make money off of it. Sure, that’s a gross oversimplification, but simple maxims serve an important role when it comes to complying with the law. And because breaking the law is never a successful business strategy (at least not in the long run) most businesses who view creative content as their lifeblood spend a great deal of time and money complying with that maxim.
But what about when you’re not so much in the business of producing your own content as you are in facilitating the distribution of the content of others? The business of companies like YouTube, Pinterest, Flickr, Instagram and Tumblr isn’t to create content, but to serve as platforms for publishing and distributing the content of their users. And unfortunately, more often than those companies would care to admit, the uploading of that content constitutes copyright infringement.
Online service providers can be held liable for infringing content that’s uploaded by their users and distributed via their platforms under a legal theory known as secondary liability. Secondary liability has changed dramatically over the last thirty years as technology has made copyright infringers out of anyone who can execute a mouse-click, but the principle has remained the same; typically requiring a third-party intermediary to induce, encourage, facilitate or benefit from the actions of the end-user who is the direct infringer.
Service providers’ best line of defense against a claim of secondary infringement resides in the safe harbor provisions of the Digitial Millennium Copyright Act (DMCA), a piece of legislation passed to prevent the threat of frivolous secondary liability claims against litigation-wary service providers from grinding Internet traffic to a halt. In a nutshell, the DMCA cloaks service providers with immunity from secondary liability so long as they meet a list of criteria that include, among other things, appointing a designated DMCA agent to field infringement complaints, implementing a comprehensive “notice and takedown” procedure, and implementing a policy for terminating users who are repeat offenders.
In theory, the DMCA has worked as intended. Copyright holders have a relatively streamlined process for getting their works removed from websites they’ve been uploaded to illegally. Meanwhile, service providers get a stay-out-of-court-free card, so long as they maintain strict compliance with safe harbor provisions. And when it’s properly preserved, the DMCA safe harbor is an affirmative defense that has consistently withstood assaults from very powerful plaintiffs including, most famously, this one. It’s become such an important part of protecting their business interests that the larger, more established providers have operationalized the process, creating bonafide DMCA compliance departments within their organizations.
But while the safe harbor provisions are simple in theory, they can be inordinately complex and cumbersome to implement in practice. Take the notice and takedown requirement for example. The DMCA requires that providers must upon notification of claimed infringement respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Sounds simple enough, but what constitutes notification? What is expeditious? How much support must the claim have, if any? And how much responsibility does the provider have to investigate the merit of the claim? The answers can be complex, and require a careful parsing of case law, something that the established service providers like Google have no problem with. But what about the smaller providers and start-ups who lack the resources to fully understand, let alone comply with all the DMCA requirements. To understand just how daunting a process the notice and take down component of the DMCA can be, consider this great info-graphic from web hosting company Nexcess. And remember, the notice and takedown is just one of several requirements for providers who host third-party content.
Faced with the ever-present risk of being sued for secondary liability for content uploaded to its servers, what is the average online provider without Google-like resources to do? Two things. First, understand that if operating a website that allows users to upload content subject to copyright laws (which is basically all content) is part of your business model, then the DMCA is your single greatest defense against a lawsuit. Second, unless you have met the minimum requirements required by statute, including appointing a DMCA agent, you will likely find yourself unable to rely on it. The DMCA is a powerful weapon against the threat of secondary copyright infringement, but like any weapon, it’s only effective when it’s used correctly.
The content of this blog is intended for informational purposes only. The information provided in this blog is not intended to and does not constitute legal advice, and your use of this blog does not create an attorney-client relationship between you and The Law Firm of Brian J. Meli. Under the rules of certain jurisdictions, the material included in this blog may constitute attorney advertising. Prior results do not guarantee a similar outcome. Every case is different and the results obtained in your case may be different.
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