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Guest posting and copyright infringement

Los Angeles, CA |

I am looking to accept guest posting on my blog. There are many guest blogging network sites that allow you to accept guest posts from others. What is the risk if these posts have partly been plagiarized? Do I simply have a DMCA policy on my site and take down infringing posts when requested.

Attorney Answers 7


  1. Yes, a DMCA notice would be all the protection you need for the actions of a guest blogger on your site.

    This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.


  2. The DMCA should provide sufficient protection. HOWEVER, in addition to providing a mechanism through which people can contact you to submit DMCA complaints, you will also need to register a DMCA agent with the Copyright Office, have a policy for repeat infringers, and actually comply with the DMCA take-down process.

    Having a "notice" and taking down a post when you receive a complaint does not necessarily insulate you from liability.

    Here's a decent site summarizing the DMCA agent requirement, and providing links to other steps you need to take to take advantage of DMCA safe harbors: http://www.newmediarights.org/guide/copyright/how_register_dmca_agent

    I am an attorney, but I am not YOUR attorney. By providing free, generalized information, I am not entering into an attorney/client relationship with you, nor am I providing legal advice applicable to your particular needs.


  3. DMCA notice would be sufficient, under the facts that are given.


  4. Yes, although it is a little more involved that you state. If you follow the DMCA you should be immunized against liability by the DMCA. Go to 17 USC 512 for the statutory scheme. I suggest you have an Internet attorney set this up for you. When you say "my blog" that means a website. When setting up a website there are many other considerations. Here is a run-down:
    1 Intellectual Property Issues
    1.1 Trademark or Servicemark -Services or products? Will the name help sales? Clearance search done? If not available, check with a TM attorney on options or pick another mark. Register? Where? When? What? How?Start with just common law rights (seldom smart.) 1.2 Tradename - Available? In the state where you will base your operation? 1.3 Domain Name – Use the TM/SM as domain?Availability search done? Register with host? 1.4 Copyright - Of Others - Images used? Stock? Original? Licensed? Registered? DMCA notice, procedure, software Of Yours – Registered? Images? Content? Notices? Copy-Protect? Embedded tracking? 1.5 Patent - Of others – right to use search? License? Of Yours – patentability search, costs to patent, timing (need for speed), choice of attorney
    2 Busines entity
    2.1 C corp, S Corp, Non-Profit, LLC or a sole proprietorship? 2.2 State of choice – tax rates, business-friendly?, favorable laws, anonymity rules, costs, benefits, risks
    3 Basic Agreements
    3.1 Terms of Service – Do it at the startA little work here brings big dividends in the future. 3.2 EULA - "browser wrap", "click wrap", “shrink wrap” - which do you need? 3.3 Vendor Agreements – web designer, host, credit, fulfillment, returns, royalties, etc. 3.4 Privacy Policy - Every e-commerce site needs a privacy policy, especially medical information sites, lead generation sites, investigative sites, etc. 3.5 DMCA policy - Do you need? 3.6 Employee Agreements? with patent clause?, with work for hire clause? with secrecy clause? with non-compete of reasonably short duration and geographical limitations?
    4 Accounting
    4.1 Quicken software or CPA? 4.2 QuickBooks? 4.3 TurboTax? 4.4 Do you need a good accountant's advice? 4.5 Taxes - Do you need and have an EIN? You can get that for free. 4.6 What state fees and filings are needed?
    5 What Registrar & Host – GoDaddy? Bluehost?
    5.1. Services offered - JustHost currently sets the standard in value http://web-hosting-review.toptenreviews.com/justhost-review.html, although heavily advertised GoDaddy is currently the most popular http://www.godaddy.com/hosting/web-hosting.aspx?ci=76393 5.2. Price - The prices are so cheap they are almost not an issue. How long are you locked into a set price? Is it just a promo price? Volume discounts? Different prices for different packages so you can fit your needs? 3. Reliability - What is their uptime percentage - should be 99% or more. Linux (most reliable) or Microsoft based servers? 4. Experience - How long have they been around? How many sites do they currently host? 5. Read the reviews http://web-hosting-review.toptenreviews.com/index.html
    6 Blog
    6.1 Will you have one? WordPress? Blogger [owned by Google]? 6.2 What terms? 6.3 Who sets it up? 6.4 Who maintains it? Who updates it? Who monitors it? 6.5 Who can comment on your behalf? 6.6 How often is it checked and by whom? 6.7 Google Ranking/SEO – How & who?
    7 Other miscellaneous
    7.1 Insurance – Do you have any? What types do you need? General, specific, cost? 7.2 Records Retention & Backup – What sort do you have? 7.3 What Registrar & Host – GoDaddy? Bluehost? 7.4 Bandwidth – what do you need 7.5 Shopping Cart – which service? will you manage? will you automate it? 7.6 Google Ranking/SEO – How & who?

    http://www.avvo.com/legal-guides/ugc/checklist-for-starting-a-website

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.


  5. Be careful because you don't want to lose your immunity against liability. It may be a good idea to meet with an attorney before going forward. Good luck.

    www.DigitalEsq.com
    (855) Mr-Cyber-Law

    The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.


  6. If a guest blogger, either directly or through a company, provides you with a copy of his article and YOU publish it on your website then no DMCA safe harbor immunizes you from copyright infringement liability if that article infringes a copyright.

    To the extent my colleagues suggest otherwise, I think they're wrong.

    DMCA Section 512(c) limits a service provider's liability "for infringement of copyright by reason of the storage AT THE DIRECTION OF A USER of material that resides on a system or network controlled or operated by or for the service provider." 17 U.S.C. § 512(c) [emphasis added]. The legislative history indicates that such storage includes, by way of example, "providing server space for a user's web site, for a chatroom, or other forum in which material may be posted at the direction of users." EXCLUDED from Section 512(c)'s safe harbor is "material `that resides on the system or network operated by or for the service provider through its own acts or decisions and not at the direction of a user.'" Costar Group Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 701 (D. Md. 2001) (quoting H.R. Rep. 105-551(II), at 53 (1998)).

    So ... if you solicit an article, chose to publish it and then publish it, those are all YOUR acts and decisions for which YOU are liable. You may qualify for a DMCA safe harbor only if people can directly publish material on your website.

    The relevant law that does control is part of the Communications Decency Act at 47 U.S.C. section 230(c) which states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

    While quite broad on its face, this immunity does NOT immunize interactive service providers [such as yourself] with immunity from liability for conduct that violates (1) federal intellectual property rights or (2) any federal criminal statute [such as the prohibition of disclosure of trade secrets or classified information]. Which leaves you exposed to liability for copyright infringement claims and misappropriation of trade secrets and any other violation of intellectual property rights or federal criminal statutes.

    You need to speak with an intellectual property attorney. Good luck.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.


  7. Having properly drafted terms and conditions will go along way as well.

    I agree with the other responses here, but will add that technically under the CFR a proper contact entity or individual is required to be on file at the US Copyright Office in order to secure the ISP/Webmaster safe harbor under the DMCA. This same contact is require to be conspicuously noted in the terms on your site. While I highly doubt this has been litigated and that a court would vitiate an ISP's safe harbor for lack of this filing (in that they would likely allow it to be done retro-actively - but who knows), it is still a requirement and I would not want to be the sorry guy to test it. So keep that in mind...

    You should discuss your plans over with a lawyer in more detail and most of us here, including myself, offer a free phone consult.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

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