United States: Nonprofit Websites: No Copyright Infringement Safe Harbor For Content Posted By Third Parties If Not Following DMCA Formalities

Last Updated: July 17 2015
Article by Linda J. Zirkelbach

Did you know that, under the U.S. Copyright Act, if a third party uploads or posts copyrighted material to your nonprofit's website, and the third party did not own it or have authorization to do so from the copyright owner or exclusive licensee of that material, your nonprofit can be held strictly liable for copyright infringement as the operator of the website where it was posted or uploaded?

This is alarming but true—there is strict liability in federal copyright law. This means that, even if your nonprofit did not, itself, place the infringing content on its website, or did not even know it was there, the nonprofit could be held liable for infringing content uploaded to its website by another.

However, as a result of pressure from internet service providers, four safe harbor provisions (Section 512(a) through (d)) were included in the Digital Millennium Copyright Act (DMCA) a number of years ago which shield service providers from copyright infringement liability under certain circumstances. While there is much to discuss in this area, this article will focus only on the Section 512(c) safe harbor provision, which, if you qualify and comply with the statute, may provide immunity for a service provider from liability for storing material, at the direction of a user, residing on a system or network operated by or for the service provider. While a variety of entities may qualify as a service provider, here we discuss only the instance where a nonprofit can be designated a service provider by virtue of operating a website allowing for the posting of content by third parties. Put simply, if a nonprofit meets the "service provider" definition and complies with the statutory requirements of Section 512(c) of the DMCA, your nonprofit may qualify for a "safe harbor" from liability arising from infringing material posted or uploaded by another party to the nonprofit's website.

So what should a nonprofit do in an effort to qualify for this "safe harbor"? Three things:

  1. Designate, on your website in a publicly available location, an agent who is to receive notifications from third parties of claimed copyright infringement and include the name of the service provider, and the name, address, telephone, fax, and email address of the specific designated agent you have selected to receive notifications.
  2. Provide the U.S. Copyright Office with the required information for the designated agent. A number of cases, including one as recent as June 30, 2015, have held that if you do not directly provide the U.S. Copyright Office with the required information about your designated agent, you cannot claim any safe harbor from liability—period. This is the step that nonprofits most often overlook.
  3. Respond expeditiously to any effective notifications, or "take-down" notices you receive, as required by the statute. Because some notifications, and your response to them, can be nuanced, we recommend that you discuss with copyright counsel your own protocol for responding to these notifications.

To be clear, not every website operator will always be able to take advantage of the Section 512(c) safe harbor. Not all nonprofit websites will necessarily meet the service provider definition. Moreover, there have been a number of protracted lawsuits regarding whether and the circumstances in which the website operators should be liable when they know about the infringement, they should have known, there were "red flags," or they derived a financial benefit from the infringing material and could control the activity. These issues are likely to be continually litigated in the future, so they should be the subject of individualized legal advice based on the facts of the particular situation. This article is focused on nonprofits that are legitimately unaware of the infringement or any red flags, and do not financially benefit from or have the right and ability to control the activity. If you are unsure where your nonprofit's website falls, a more complex analysis is required to assess the potential risk.

But, without following the precise steps in Section 512(c) of the DMCA, your nonprofit would simply not qualify for this safe harbor from strict liability for infringing material on your website posted by others and would likely be held strictly liable. Complying with the statutory requirements is relatively inexpensive, takes minimal effort, could serve to absolve your nonprofit from liability, and would be time and resources well spent. In short, it is recommended that you make it a priority to ensure that your nonprofit has posted the necessary designated agent notice, that you have a complete and accurate designation filed with the U.S. Copyright Office, and that you properly handle any effective notifications that you receive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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