DMCA Safe Harbor: Part One

Filed as Features on July 28, 2008 9:25 am

There are few laws that affect bloggers more directly than the Digital Millennium Copyright Act (PDF) safe harbor provisions. Not only do bloggers use it to secure removal of their works when copied without permission, but many also take advantage of its protections to offer new services to their readers.

But the safe harbor provisions are also one of the least understood laws actively being used. Many do not understand exactly what the DMCA safe harbor protections do and what they protect protect. As such, they do not understand what their rights and obligations are under the law.

So we’re going to take a moment and analyze what the law actually says and how it applies to bloggers, both as content creators and as hosts, and look at how we can best use the law as it is written today.

Section 512(c): Web Hosts

It is worth noting that the DMCA does not use the term “host”, but rather, refers to “Information Residing on Systems or Networks at Direction of Users”, meaning content that was placed on the server by someone other than the administrator.

This means that the DMCA can not protect you from content that you post yourself or have editorial control over. It can only protect you from content posted by “users”, including subscribers (in the case of a paid hosting account), commenters or anyone else who puts material on a server without oversight.

Beyond that, the DMCA places several requirements on the site or service before they can claim safe harbor protection, those requirements include the following:

  1. No Actual Knowledge: The administrator can have no actual knowledge that the material is infringing.

  2. Removes Infringing Material: The host must remove infringing material expeditiously when properly notified.

  3. Has No Direct Financial Benefit: If the host has the right to control the activity, then they can not receive any direct financial benefit from it.

  4. A Designated Agent: Hosts should designate an individual, often the administrator himself or herself, to receive notifications of copyright infringement.

  5. Contact Information Available: Finally, hosts have to make the information of their designated agent available both on their own site and by registering with the U.S. Copyright Office.

Of course, even among the largest hosts, exact compliance with the law is spotty at best. Some hosts don’t register with the USCO at all, others don’t put their complete information on their site. Others may gain some financial benefit while other sites may not move as quickly as possible to infringing works.

The truth is that most of these elements are relatively untested in the courts so it is unclear how much protection hosts lose by failing to comply with certain parts.

But if a host or a blogger or host wants to be as safe as possible, these are the requirements the law puts forth to ensure that they can not be held liable for infringement by users.

Section 512(d): Information Location Tools

The DMCA doesn’t just provide protection for services that unwittingly host infringing material posted by users, but also against sites that link to infringing material. The provision was designed to protect search engines and directories, but also expands to protect all providers who are “referring or linking users to an online location containing infringing material or infringing activity.”

The provisions, however, are very similar to the requirements for hosts. Services that link must be unaware of the infringement, must not obtain any direct financial benefit from the infringement and act expeditiously to remove the infringing material once they are notified or otherwise become aware.

A strange difference, however, is that the requirements for “information location tools” do not state that a site has to designate a DMCA agent. However, it only makes sense that they should considering that they still have to receive notices and act on them.

Filing a Notice

Filing a DMCA notice is tricky. It requires determining who the host is, looking up their designated agent, usually on the hosts Web site, and then sending a properly formatted letter.

But while there are many tutorials to help you locate the host, contact them and stock letters you can use when you find the right address, it is important to be aware of the specific requirements of a DMCA notice to ensure that your get acted on in a timely manner.

  1. Identification of Allegedly Infringed Material: Usually including URLs, titles or other information to help the host identify which works are being infringed.

  2. Identification of infringing material: Usually including URLs to the where the infringing item(s) can be found.

  3. Contact Information: A means for the host to contact you, usually including address, phone number and email address.

  4. Good Faith Statement: A statement that you have a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”

  5. Penalty of Perjury Statement: A statement that “the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

  6. Signature: A physical or electronic signature, which can take many formats.

Once the notice is filed and the work has been removed, the person the notice was filed against has the option of filing a counter-notice, which includes the same elements. However, it also requires that the person filing the counter notice consent to the jurisdiction of the Federal court in which they are located.

Protecting Yourself

When deciding if you want to obtain protection under the DMCA yourself, you need to first look at what you are currently doing and what your risks are.

Do you get a lot of comments from visitors that could be infringing? Do you run a forum or another community element where a lot of users posts? Do you link to a large volume of content that could be infringing without your knowledge?

If any of these things are true, and you are an American or your site is hosted with in the U.S., you may want to consider protecting yourself under the DMCA.

How far you go will depend on your case, but it is important, if nothing else, to be available to receive notices of infringement. Even if you don’t register your site or follow the law to the letter, being available will head off the vast majority of conflicts.

If people can not find you and have a copyright concern, they may decide to go over your head and work with your host directly, something that could result in the whole of your site being taken off line while things are sorted out.

Conclusions

As controversial as the DMCA safe harbor provisions are, they have actually made much of the Web we have today possible. Without the protections the DMCA affords hosts, it is unlikely that many of the sites and services we love would have been able to get off the ground.

Given both the power and the protection the law provides, it is worthwhile to take a moment and understand how the law works to ensure that it used correctly.

Simply put, bad uses of the law help no one and next week we’re going to discuss how to avoid sending bad DMCA notices and how to respond when you get one.

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  1. By RogerV posted on July 30, 2008 at 4:21 pm
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    Jonathan – have you seen anything regarding “content spinners”?

    In short, there are programs out there used typically for search engine optimization to avoid “duplicate content”. They will find hundreds of small phrases like “writes at” and replace with “is a writer for”. By replacing hundreds of words with synonyms, it’s possible to … plagiarize? But wait, if a computer rewrites it, is that plagiarism?

    Strictly speaking, from an ethical perspective, if one has to ask, it probably is wrong.

    I’m curious, however, about the legal implications. I know others have taken articles of mine and rewritten them slightly (possibly by automated program). I use spinners to rewrite my own content, so if it gets syndicated, it doesn’t show up as duplicate content to google.

    Reply

  2. By Jonathan Bailey posted on August 3, 2008 at 6:52 pm
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    RogerV: I’m sorry for the delay in getting back to you on this. Yes, I have heard of these types of scrapers and sites.

    Legally, it if is clear to an “ordinary observer” that the new work is based upon the original, that would be considered a derivative work and that would be an infringement the same as if the work were copied verbatim. After all, the same as copyright gives the copyright holder the exclusive right to make copies of a work, it also gives that person the exclusive right to make derivative works.

    Where a derivative work becomes an original one or a fair use is a slippery area but not one most spinners enter into.

    So, to answer your question, they are harder to detect and may to less damage to your SEO, but typically are just as much of an infringement.

    I hope that helps!

    Reply

  3. By Christopher posted on September 1, 2008 at 5:31 pm
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    It seems to me that in copyright infringement disputes arising of of blog postings, it would be important to know the date when a blog is published for the first time.

    Since the dates of blogs can now be altered at will by their writers, can the date of a blog posting’s first appearance always be determined?

    Reply

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