Copyright Considerations for Web Hosts
Copyright Considerations for Web Hosts
The lawsuit filed recently by Viacom against Google alleging copyright infringement for many of the videos available for viewing on YouTube should be of more than academic interest to web hosts. You may believe you’re protected by the Digital Millennium Copyright Act of 1998 if one of your customers commits copyright infringement, but that protection is not automatic.The truth is that there are certain steps you need to take to show that you’ve been appropriately diligent and that your intentions are good. Remember MGM’s lawsuit against peer-to-peer file sharing site Grokster? It went all the way to the Supreme Court, where Grokster ended up losing the case. The court found that a distributor of a device capable of copyright infringement CAN be held liable for the resulting infringement if the distributor encouraged that use.
If you don’t want to be seen as encouraging copyright infringement, you need to respond promptly when such issues are brought to your attention. The section of the DMCA that is most relevant to web hosts is 512. Yes, it’s a bit long, and it’s in legalese (but still fairly readable). I’d strongly recommend that any web host read it all the way through and make sure that he or she understands it. Among other things, it talks about the conditions a web host must satisfy to be considered exempt from liability for copyright infringement.
Before I go into what you need to do to protect yourself under the “safe harbor” provisions of the DMCA, I’d like to address some of the misconceptions that may be circulating among your customers (and even your staff!) about copyright. The laws do vary in different countries. I’ll be addressing U.S. law here.
First let me mention what isn’t protected: names, titles, slogans, or ideas. The creative expression of ideas IS protected, however, which is why you see so many different articles covering the same topics both online and offline. And there is no real difference between a work that is published online and one that is published offline, at least in the eyes of copyright law. Never mind that the online work is easier to copy; that doesn’t make it right – or legal.
Copyright Considerations for Web Hosts – Correcting Copyright Myths
If you or anyone on your staff holds any of the mistaken beliefs about copyright that I’m about to discuss, you’ll want to correct them. You may even want to devote an FAQ on your web site to this issue, aimed specifically at your customers. You can also include a section that details how you will respond to receiving a DMCA notice of copyright infringement.
First of all, just because it’s published online does NOT mean that it is “in the public domain.” As I mentioned above, work that is published online is entitled to the same copyright protection as any other work. Work in the public domain can be freely used and copied.
There are certain cases in which limited portions of a work can be copied for “fair use.” Fair use purposes include commentary, criticism, and parody – but under no circumstances does fair use represent a “blank check” to copy whatever you want.
Including the name of an article’s author and/or linking to the site on which the original article appears does NOT somehow make it “okay” for you to copy the material. You still must get permission. If you think enough of an article to want to copy it anyway, you should ask for permission; you might be pleasantly surprised. Many content sites have specific policies in place that allow some limited content reproduction, if you ask nicely.
Changing an article or a design slightly still constitutes copying an original work. Just as you need permission from the copyright holder to copy the original work, you also need permission to use a derivative work. Only the copyright holder can publish derivatives of his or her own work with impunity.
How long does copyright apply to a creative work? Many if not most items published in the U.S. on the Internet will fall under the rules that came into effect after 1978. Those state that an item’s copyright is good for 70 years after the copyright holder’s death. If you’re dealing with a work-for-hire piece, then the copyright doesn’t expire until 95 years after it was published or 120 years after it was created, whichever is shorter.
What makes a work copyrighted? The simple act of creation is enough. It doesn’t matter whether it’s something as simple as a forum post or an email; it is copyrighted by its author from the second it’s created. It doesn’t need to be registered with anyone, and it doesn’t need a copyright notice. The copyright notice used to be necessary at one time, but that ended in 1989. It’s still a good idea to include a copyright notice though.
Copyright Considerations for Web Hosts – Steps a Copyright Holder Should Take
So what should a copyright holder do if they discover that another web site has stolen his or her content? There are three steps that they may need to take. Web hosts should know about these steps because they may find themselves involved in the second one.
First, a copyright holder should contact the webmaster of the web site. You should be able to find contact information on the site itself; the site’s WHOIS entry is another potential source. When you contact the webmaster, explain the problem politely but firmly. Tell them where their content came from, and give them a deadline; if they don’t take it down by a certain time (I’ve seen some advocate giving an infringer two weeks), state that you will take further action. It’s been our experience at Developer Shed that this kind of letter does get action, and the site takes down the offending content. When it doesn’t, it’s time for step two.
The next step is one that you as a web host may have already experienced. Since you have probably stated in your Terms of Service that you do not allow illegal content, and stolen content is not legal, it only makes sense that a copyright holder would appeal to you to take it down if he or she has not received satisfaction from one of your customers. There are six specific elements that must be included in a “notification of claimed infringement” under the DMCA:
- A signature (physical or electronic) of someone authorized to act for the party that has allegedly been infringed.
- Identification of the copyrighted work that has allegedly been infringed.
- Identification of the material that is alleged to be infringing, and information that will let the web host locate the material (after all, a web host can’t take down material if it’s impossible to locate).
- Contact information for the party making the complaint (an address, phone number, and/or email address).
- A statement from the person making the complaint that they have “a good faith belief that use of the material complained of is not authorized by the copyright owner, its agent, or the law.”
- A statement that the information in the letter 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.”
The third step a copyright holder can take, if the first two don’t achieve the goal, is to take the case to a lawyer. I’m stopping short here, because my focus in this article is more on web hosts rather than copyright holders. So let me tell you the other steps you as a web host need to take under the DMCA.
Copyright Considerations for Web Hosts – Taking Appropriate Precautions
If you want to be covered by DMCA’s “safe harbor” you need to designate an individual who is responsible for receiving infringement notices from copyright holders. That’s written right into the law. The name, address, phone number, and email address of that person must be included on your web site “in a location accessible to the public,” and should also be provided to the Copyright Office, which maintains a directory of these agents. There is a form you can fill out to designate an agent; you’ll also have to pay an $80 fee. Think of it as an investment in your business.
Your next step is to draft and implement a DMCA policy. The DMCA itself states that you need a policy in place to deal with repeat infringers. Under the DMCA, you’ll be expected to analyze and respond to initial notices, counter notices, injunctions and “repeat infringer” notices. There are web hosts that will play it safe and automatically take down material if someone says that it infringes on copyright. That’s not always the best approach; for example, when Viacom demanded that YouTube take down 100,000 videos it claimed infringed its copyrights, a significant fraction of those videos were not infringing. In fact, the Electronic Frontier Foundation sued Viacom over one of the videos that it ordered taken down.
Full information about the various kinds of DMCA notices, and how to respond to them so that you are protected under the DMCA’s safe harbor provisions, can be found in the DMCA itself. There’s a fair bit of record keeping involved for everyone’s protection, but again, this is an investment in your business. David Snead wrote an article for Web Host Industry Review that lays out what a web host’s DMCA policy might include; although the article dates to mid-2005 it is still valid.
Finally, you need to make it very clear that you’re complying with DMCA policy. Tell copyright holders right on your web site who they need to contact and what steps they need to take to file a DMCA notice with you. Make it easy for them, and you make it easy for yourself.
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Copyright Considerations for Web Hosts