Any website that allows users to post or upload images, audio, video, or text content may be concerned about being liable for illegal content such as copyright infringement, illegal porn, or other illegal content. This affects website owners, internet service providers, SaaS companies, social media, and hosting companies. Fortunately, there is a relatively easy way to avoid liability – even if illegal material gets hosted through your website.
In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect Interest service providers from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), the law exempts on-line service providers that meet certain requirements from claims of copyright infringement made against them resulting from the conduct of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing is liable for monetary damages; the service provider’s network that was used for the infringing activity is not liable. There are two safe-harbor provisions within the DMCA that potentially apply to online publishing activities. Both of these require that certain criteria are met.
The first safe-harbor provision relates to materials posted to your blog or website at the direction of a user. This safe-harbor provision is found in section 512(c), and it states that, as the administrator of a website or other service, you will not be held liable for money damagesfor infringing content posted “at the direction of a user.” This could include a file (e.g., a photograph, a film clip, an audio file) that a user posts to a comment section on your site or to a forum thread. There are many other possible examples but the key factor is that the material was posted by a user.
The second safe-harbor provision relates to links you post to other online material located elsewhere. This safe-harbor provision is found in section 512(d), and it states that an online service provider will not be held liable for money damages “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.” (emphasis added). If you linked to material without knowing that it infringed copyright, the section relives you of liability.
Both of these provisions also require that certain other criteria are also met in order for safe-harbor to be in effective. These include:
These last three requirements are further discussed below.
The owner of the website owner is required to have designated an agent to receive copyright infringement notifications. Designating a proper agent under the DMCA requires two steps. The service provider must have:
The notice must contain the name, address, phone number, and electronic mail address of the agent and other contact information that the Register of Copyrights deems appropriate.
Again, remember that the DMCA protection doesn’t expire until a copyright owner provides “Proper notification” that their rights are being infringed. Such notification or a “take-down notice” is defined in the statute as a copyright owner providing:
Keep in mind that even if they fail to send a completely formal DMCA notification, it may be in your best interest to immediately in response to a simple polite email. Once a formal DMCA notification has been sent to a service provider however, the safe harbor expires and the service provider must take down the infringing material.
One of the most common questions website owners encounter concerns embedding youTube videos on their website. This is actually, for the most part, completely acceptable and legal. In fact, youtubes terms of service specifically states:
You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. – [youTube TOS part 6C]
This “non-exclusive license” means that anyone that the owner automatically grants you a limited license to embed the video on your site.
There is still however, a problem if the person that uploaded the video to youTube was copyright infringing. In such a case, that person had no legal position to give out a license. Thus, by embedding their youTube video you are also copyright infringing.
This sounds worse than it is though. While you are technically committing copyright infringement in such a situation, so are youTube and the original uploader. Anyone trying to enforce their rights would almost certainly go after youTube or the uploader first. More importantly, the DMCA’s safe harbor protection will still provide you protection – so long as you actually take the infringing material down once notified. Of course, they are
The technical point to keep in mind is that an embedded video is just a link. If you are just embedding a youTube video, there is no copy of the video being stored on your server, just the HTML code for the embed video. Therefore, you can still claim the protection of the safe harbor found in 17 U.S.C. § 512(d), discussed above.
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