Failure to qualify for DMCI safe harbors

What does this mean?

Like we mentioned in Avoidable Mistake no. 51 (Failure to prevent your website users from infringing on someone’s copyright via your website), if you have a website, you may be liable for copyright infringement committed by your users. This is true whether you consent or benefit from the infringement or not.

When something is sent or stored online at least one of three things happen:

  1. It will be copied or reproduced
  2. It will be sent to others
  3. It will be displayed or posted

All of this is done by you, your website - not the user who uploaded it and none of which you can do with any copyrighted material without the owner’s permission. Which means you can actually be on the hook if the owners sue for infringement.

The good news is: the Digital Millennium Copyright Act or DMCA allows safe harbors or “free passes” for those who have websites or online platforms. Those who qualify will not be liable for infringement activities their users do on their websites. If you qualify for a safe harbor, you will be protected not only from having to pay damages for the infringement. You will also be protected from “injunctions” against your company. The injunctions can only affect the copyrighted material.

What are the safe harbors?

There are four safe harbors you can qualify for depending on the activity you are likely to be on the hook for:

  1. Being the means of transmitting material
  2. “Caching”
  3. Saving
  4. Linking or facilitating finding these materials online.

To clarify: each of those 4 are acts that could make you liable for infringement. The DMCA just creates a safe harbor for people whose services include any of those 4, if they comply with the respective conditions of each safe harbor. The thought process should be: if you do no.1 above, then you should check what the requirements for that particular safe harbor and make sure you comply with it.

With that said here are some important things to remember:

  • You can qualify for all 4 if you do all of them
  • Failing to qualify for 1 does not necessarily disqualify you from the others
  • Protection is limited to the the particular act under the safe harbor you qualify for (e.g. if you qualify for the safe harbor for transmitting, you’re only protected from suits for transmitting and not for caching, saving or linking unless, of course, you qualify for those too)
  • Qualifying for one does not mean you get the protection for all 4.

Does this apply to me?

If you have a website or provide online services that allows users to send, store or post, then yes.

Why is making this mistake going to harm my business?

If your website users store, transmit, make illegal copies of, or do something else involving the copyrighted materials through the services you provide, you might be on the hook for copyright infringement yourself. This could mean fines and damages. Your whole site may also be shut down or suspended.

You could avoid this by:

Making sure you qualify for the safe harbors that apply to you. Each safe harbor has its own set of conditions which can get pretty technical so you should check out all of them specifically and in great detail.

But, there are certain requirements that are common to all of them so start with making sure you comply with these:

  1. Qualify as Online Service Provider: First, you must meet the specific definition of a service provider with respect to the safe harbor you are aiming for:
    1. For caching, storing and linking safe harbors, a service provider includes those that provide “online services” and “network access” plus letter “b” below.
    2. For the transmitting safe harbor, this is a narrower definition including only those whose services allow users to transmit material they choose to specific recipients they also choose, and who do not modify the material transmitted.
  2. Cooperate with the copyright owners: Next, you need to cooperate with copyright owners in protecting their work, including not making it difficult for them to do so.
  3. Have a “repeat infringers policy”: Lastly, you shouldn’t just help stop infringement when it happens, you also must help keep it from happening on your site over and over. You should adopt a policy regarding terminating services or contracts with people who violate copyrights using your services and let your users know of this policy.

Example:

Will has a website he uses to promote his app. On his app, each user has their own public profile page where they can post about their experiences or questions they have about the app.

Chet, a user of Will’s product, decided to promote his own product by posting about it on his profile on Will’s website. To attract more link clicks, Chet posted popular ebooks on his page and links to donwload the PDF of the ebook.

Not long after, the publishers who owned those books demanded Will take down the pages. Will, however, made the mistake of promising to never take down any profiles or comments for transparency purposes. The publishers then sued Will for copyright infringement.

In this case Will would likely be held liable for at least secondary infringement even if he did not even know what Chet posted. He could have avoided this by making sure he had enough control over user actions that would enable him to comply with any future take-down notices.

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