SMHLLAW

 By Tom Graves

INTRODUCTION

The phenomenon that has been dubbed “Web 2.0” offers a plethora of new avenues for communication, cooperation and innovation.  The first major wave of mainstream Internet use saw the fast deterioration of certain “barriers to access” in publishing and other forms of media distribution.  As more and more individuals become Internet savvy, and as new developments in technology allow richer forms user generated content to be shared over the Internet, online communities have grown in number, complexity and variety.

The ease of access to such a versatile and powerful media outlet has naturally led to more and more individuals trying their own hands at creating online forums and fostering online communities, whether for personal, financial or political advancement.  The opportunities are vast, and these individual efforts promise to enliven the Internet space even further, but proper steps must be taken to ensure that legal snares do not hinder the progress of a fledgling online community, or the continued viability of an established one.

One legal area that has been a hot topic ever since the mass-market web browser was first launched involves copyright law.  First there was text, then visual images, then music, then video and multimedia.  There is hardly a form of copyrightable content that has not been significantly impacted by the development of the Internet.  With stiff criminal and civil penalties for copyright infringement still firmly on the books (e.g. the recent $220,000 verdict won by the RIAA against a single file-sharer), it goes without saying that those who create and maintain frameworks for the reproduction and distribution of copyrightable content would be wise to take whatever steps are available to steer clear of such devastating consequences.

Thankfully, copyright law itself provides at least one proactive way for online service providers to avoid liability for copyright infringement in cases where the infringing activity was instigated by a third-party user.  This protection is known as the “safe-harbor” or “notice-and-takedown” provision of the Digital Millennium Copyright Act (DMCA) and can be found in Section 512 of the Copyright Act.

WHAT DOES IT COVER?

Although there are technically four different DMCA safe-harbor provisions, the one most pertinent to the Web 2.0 phenomenon is set forth in subsection 512(c) of the Copyright Act, and is entitled “Information Residing on Systems or Networks at Direction of Users.”  This provision protects online service providers when infringing content is “stored on a system or network controlled or operated by the service provider,” but only when the infringing content was stored “at the direction of a user.”

WHAT OTHER CRITERIA MUST BE MET TO GAIN PROTECTION?

In order to qualify for protection under the DMCA safe-harbor provision set forth in subsection 512(c), the online service provider must also meet the following four criteria:

1. The online service provider must not have actual knowledge that the content is infringing, or be aware of facts or circumstances that would indicate infringing activity, without promptly removing or disabling access to the infringing content;
2. In cases where the online service provider has the right and ability to control infringing activity, the online service provider must not receive a financial benefit directly attributable to the infringing activity;
3. Upon notification of claimed infringement, the online service provider must promptly remove or disable access to the infringing content.
4. The online service provider must designate an agent to receive notifications of claimed infringement, whose contact information must be provided to the Copyright Office and made publicly available through the service;
5. The online service provider must adopt and reasonably implement a policy that provides for the termination of subscribers and account holders of the service provider’s system or network who are repeat infringers, and must inform subscribers and account holders of the policy.

WHAT CONCRETE STEPS DOES AN ONLINE SERVICE PROVIDER NEED TO TAKE TO BE PROTECTED BY THE DMCA SAFE HARBOR PROVISION?

The first step an online service provider must take in order to take advantage of the DMCA safe harbor provision is to designate an agent to receive notifications of claimed infringement.  This must be done through the U.S. Copyright Office, which currently provides a one-page form to be filled out and sent to the Copyright Office along with a fee of $80.  This relatively simple process is described in greater detail on the web site of the Copyright Office at http://www.copyright.gov/onlinesp/, and the form can be found at http://www.copyright.gov/onlinesp/agent.pdf. 

After designating an agent to receive notice of claimed infringement, the online service provider must be prepared to remove or disable infringing content upon notification of the infringement.  When possible, the architecture of the web-based service should be designed to allow the simple removal of infringing content without shutting the entire service down.  This type of architecture is important for obvious reasons.

After taking those two steps, the online service provider is less likely to be unpleasantly surprised by a copyright infringement lawsuit based on third-party content, as copyright holders are provided with a simple way to notify the service provider that it is hosting infringing content.  However, an online service provider must bear in mind that designating an agent to receive notice of claimed infringement, and removing or disabling infringing content upon such notification, are only two of the DMCA safe harbor requirements.  The online service provider must also appropriately monitor third-party use of its online service, avoid receiving a direct financial benefit by hosting infringing content, and develop a policy for terminating the accounts of repeat infringers.  The nature of each of these measures will depend on the particular online service, and the assistance of an attorney may be necessary to ensure compliance.