Steps to Keep Your Website Safe from Copyright Liability
Itís alarming but
true: If a third party uploads or posts copyrighted material to your website,
your association could be liable. Hereís how to protect your organization.
By Linda J. Zirkelbach
Did you know that under
the U.S. Copyright Act, if a third party uploads or posts copyrighted material
to your nonprofit's website ó and the third party did not own it or have
authorization to do so from the copyright owner or exclusive licensee of that material
ó your nonprofit can be held strictly liable for copyright infringement as the
operator of the website where it was posted or uploaded?
This is alarming but true.
There is strict liability in federal copyright law. This means that even if
your nonprofit did not, itself, place the infringing content on its website, or
did not even know it was there, the nonprofit could be held liable for
infringing content uploaded to its website by another.
However, as a result of
pressure from Internet service providers, four safe harbor provisions (Section
512(a) through (d)) were included in the Digital Millennium Copyright Act
(DMCA) a number of years ago, which shield service providers from copyright
infringement liability under certain circumstances. While there is much to
discuss in this area, letís focus on the Section 512(c) safe harbor provision.
So what should a nonprofit
do in an effort to qualify for this "safe harbor"? Three things:
- Designate, on your website in a
publicly available location, an agent who is to receive notifications from
third parties of claimed copyright infringement and include the name of
the service provider, and the name, address, telephone, fax, and email
address of the specific designated agent you have selected to receive notifications.
- Provide the U.S. Copyright
Office with the required information for the designated agent. A number of
cases, including one as recent as June 30, 2015, have held that if you do
not directly provide the U.S. Copyright Office with the required information
about your designated agent, you cannot
claim any safe harbor from liability ó period. This is the step that
nonprofits most often overlook.
- Respond expeditiously to any
effective notifications, or "take-down" notices you receive, as
required by the statute. Because some notifications and your response to
them can be nuanced, discuss your own protocol for responding to these
notifications with copyright counsel.
To be clear, not every
website operator will always be able to take advantage of the Section 512(c)
safe harbor. Not all nonprofit websites will necessarily meet the service
provider definition. Moreover, there have been a number of protracted lawsuits
regarding whether website operators should be liable when they know about the
infringement, they should have known, there were "red flags," or they
derived a financial benefit from the infringing material and could control the
activity. These issues are likely to be continually litigated in the future, so
they should be the subject of individualized legal advice based on the facts of
the particular situation. This article is focused on nonprofits that are
legitimately unaware of the infringement or any red flags, and do not
financially benefit from or have the right and ability to control the activity.
But, without following the
precise steps in Section 512(c) of the DMCA, your nonprofit would simply not qualify for this safe harbor from strict
liability for infringing material on your website posted by others and would
likely be held strictly liable.
Complying with the statutory
requirements is relatively inexpensive, takes minimal effort, could serve to
absolve your nonprofit from liability, and would be time and resources well
spent. In short, make it a priority to ensure that your nonprofit has posted
the necessary designated agent notice, that you have a complete and accurate
designation filed with the U.S. Copyright Office, and that you properly handle any
effective notifications that you receive.
Linda J. Zirkelbach is counsel at