Website Legal Issues: Finding a Safe Harbor in a Sea of Third Party Content

We love YouTube and FaceBook. We love connecting with our old friends from third grade and chatting with people halfway around the world.  The ability for a commerce website to accept third-party content has brought a new dimension to shopping. Commercial websites like Threadless.com and Jinx.com, have definitely proven that social media and commerce not only mix but create an atomic bomb of greatness leading to more money for the seller and lots of happy loyal customers.  I mean, come on – how many t-shirts do you need?  Add the opportunity to vote, comment, join an online community and post pictures of yourself (your puppy or your grandpa) in your favorite t-shirt and the answer is – I CAN’T GET ENOUGH!!!!

The ability to post third party content to your site is irresistible, maybe even critical to the value of your online business, therefore it is important that you know how to find a Safe Harbor in the sea of third party content.

As we have discussed in previous posts – and as you no doubt know from the media – copyright and trademark infringement issues run rampant on social media sites.  Website operators like YouTube, Google, WordPress, and FaceBook are constantly in the news – fending off intellectual property infringement law suits created by third party content.  These web site operators know how to find Safe Harbor, and now you shall too!

The Digital Millennium Copyright Act (“DMCA”) provides web site owners with some protection against liability for copyright infringement resulting from content uploaded by third party users.

However, you must DO SOMETHING in order to be eligible for Safe Harbor.

To get protection, you must STRICTLY comply with the following requirements of the DMCA:

• You must file documents with the Copyright Office designating an agent – a person to whom copyright owners can submit a Notice & Take Down letter if that copyright owner finds infringing material on your website
• You must institute (and diligently follow) a DMCA policy, including:
  • A working notification system (if a copyright owner tries to find you – they can)
  • A procedure for dealing with complaints from copyright owners regarding infringing content on your website
  • A system that allows copyright owners to collect the information they need to issue DMCA complaints

Some websites are not eligible for Safe Harbor.  Your site is not eligible if it falls into the following categories:

• You have actual knowledge of copyright infringement – your site encourages or facilitates infringement
• You receive direct financial benefit from the infringement, i.e. without the infringement, you would make no money
• You have the right and ability to control the infringing activity

Being that this is copyright law – (read: non-intuitive at best and incomprehensible at worst) whether your website falls under one of these categories is fact and case law dependent.  If you have questions about the status of your website and whether you fall into a Safe Harbor – you should definitely have your website model analyzed by a competent copyright attorney.

Be informed!

1) Ensure you are protected by the act. Service providers are protected ONLY if they register an agent with the U.S. Copyright Office. Details regarding the registration process and forms can be found at the the following site:  http://www.copyright.gov/onlinesp/

Heather N. Schafer is an intellectual property attorney who helps companies stay out of hot water.