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Which country law (or DMCA) applies for a website hosted in US but owned by a non-US person and operated outside of US?

Marina, CA |

I host my website in US. However, I am from a country outside US & running the website outside US. My site allows users to post content. So I know Digital Millennium Copyright Act (DMCA) safe harbor can protect me from being liable to the user posted content. However, I am not a US resident nor US company and cannot register a DMCA agent. By setting the choice of law to my country law in my site's Terms of Use, will I be still liable to the user posted content under US law? Or my country law will apply instead? If US law applies, how can I protect myself? Should I ship my site to a server resides in my country? How about .com domains & hosting providers? Should I change to another provider who is registered in my country?

Attorney Answers 2

Posted

If you think I am going to advise you as to how you can evade US law for a web-site that posts content that reaches US citizens and may engage in civil and criminal violations of US copyright law or trademark law, you are delusional. If your web-site reaches people in the U.S., U.S. law will apply in the event your web-site violates law. This is true regardless of where the servers that host your web-site are located. U.S. courts will find that there is personal jurisdiction in a U.S. court for someone who operates a web-site outside of the United States that reaches U.S. residents and violates U.S. law. There is no reason why a website that operates outside of the United States cannot register a U.S. based DMCA agent (such as a law firm), and no reason otherwise that the web-site cannot comply with the DMCA and take advantage of its safe harbor provisions. You cannot unilaterally write a choice of law clause in your terms of use that will successfully evades US legal requirements. You protect yourself by complying with U.S. law, or else you run the risk that you will be successfully sued in a U.S court, or arrested and prosecuted in a U.S. criminal proceeding, for violation of U.S. law. Of course, there may be ways to shield you from the reach of U.S. courts by operating in countries that do not give full faith and credit to U.S. court judgments---but you would operate in once of these "safe havens" at great peril, because at any moment the government of the "safe haven" may decide to stop providing immunity. Further, if you operate in a "safe haven", you may never be able to safely travel to the U.S. or Europe without running the risk of being served with legal process and/or arrested for criminal law violations. You need to retain legal counsel in the United States to advise you about how to legally operate your web-site, comply with US law, and at the same time reduce your risk of personal liability.

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5 comments

Asker

Posted

Thank you very much for answering my question. The answer sounds scary to me. Actually I didn't mean to evade US law nor intend to do something illegal. I am developing a proper website business which will receive user generated content, just like forum, Youtube, Facebook, etc. I just concern on how I can protect myself from the risk of being sued for user generated content which I cannot fully control. I found from Internet that to register a DMCA agent, the person must be American and located in US. I thought I cannot register a DMCA agent, so I just want to make sure which country law applies based on this situation. Based on what you advised, perhaps I need to find an agent or attorney in US to help me register a DMCA agent, am I correct?

Maurice N Ross

Maurice N Ross

Posted

Yes, You need a U.S. based DMCA agent. Often law firms are appointed to serve in this role.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Maurice, where do you find the requirement that an internet service provider's DMCA agent must be in the United States?

Maurice N Ross

Maurice N Ross

Posted

There is no requirement that the DMCA agent be US based, but the the DMCA agent must be a bona fide entity capable of performing its statutory duties. A a practical matter in view of the potential of litigation in the U.S., many foreign companies prefer to use a U.S. based take-down agent who is prepared to defend the Company's position in litigation which challenge its immunity and/or accuse it of engaging in improper take-downs.

Asker

Posted

Thank you Maurice and Daniel for clarifying the DMCA requirement for a foreigner. I will take a serious consideration on all of these.

Posted

Your premise is wrong. You note that "I am not a US resident nor US company and cannot register a DMCA agent." Yes, you can. You and your own U.S.-licensed copyright attorney should follow the directions provided by the links below. 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.

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2 comments

Asker

Posted

Thank you for your answer! Now only I know I can register a DMCA agent through a U.S.-licensed attorney. Alternatively, can I register through any U.S. resident or U.S. company instead of a U.S. attorney?

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

You don't need anyone in the U.S. to act as a middle man to register your DMCA agent. You, all alone and wherever in the world you live, may inform the U.S. Copyright Office of the name and address [which may also be anywhere in the world] of your DMCA agent. I noted that you should work with you own U.S.-licensed copyright attorney because that's the best way to do things right -- but it's not necessary.

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