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Digital Millennium Copyright Act Safe Harbor Provisions

Posted by attorney Alexander Montgomery

If you operate a website that allows users to post or generate content, you may be liable for contributory copyright infringement. With statutory damages between $750 and $30,000 per work, or actual damages, available to aggrieved parties, liability for infringement can easily run into the millions of dollars. Luckily for online service providers, the Digital Millennium Copyright Act of 1998 (“DMCA") provides a relatively simple but strict procedure that can prevent your website from being held liable for the content posted by your users.

Steps for Avoiding Liability

There are three basic steps an online service provider needs to take to avoid liability for contributory copyright infringement. To avoid liability, the website must:

  1. Register an agent with the U.S. Copyright Office who will receive all DMCA notices;
  2. Post the name, address, phone number, and email address of the appointed agent on the website in a location accessible to the public; and
  3. Remove or disable any allegedly infringing works upon proper notice from a copyright holder or authorized representative.

The notice provided by the copyright holder must comply with the requirements set forth in the DMCA. Namely, the notice must specifically identify the allegedly infringing content, its location, and identify the copyright holder. These requirements should be posted on your website. Once the proper notification is received, you must take down or disable access to the work(s) identified in the notification. If you comply, the DMCA will protect you from contributory liability. If you do not, you could still be held liable.

The person whose content has been removed or disabled may file a counter notification to have the content replaced. This counter notification must also meet certain requirements under the DMCA. If your website receives the proper counter notification, you must replace the removed content no earlier than 10 and no later than 14 business days after the counter notification has been received unless the copyright holder who filed the original take-down notification has notified you that he or she has filed an action seeking a court order restraining the poster from engaging in the infringing activity.

If your website offers the transmission, routing, or providing of connections for digital online communications, you are most likely subject to the DMCA. If you are operating this type of site without a DMCA take-down policy and procedure, you are unnecessarily putting yourself at risk of multimillion dollar contributory copyright infringement judgments.

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