Do you know the DMCA? The Digital Millennium Copyright Act (or DMCA) has been around since 1998, which is an eternity in Internet years. The DMCA plays a big part in doing business online and it seems there are two groups of people when it comes to the DMCA: Those who know nothing about it and could care less, and those who think they know all about it.
Why You Should Care
First, let’s touch base for who don’t know about the DMCA. The DMCA is essentially an amendment to the US Copyright Act. It provides significant revisions related to WIPO treaties and “Vessel Hull Design” protection among other revisions, but is most famous for provisions of the DMCA that relate to Title II, the “Online Copyright Infringement Liability Limitation Act.” In essence, it limits the potential liability for certain Internet service providers related to potential copyright infringement action, which can otherwise become a “strict liability offense” in US Copyright law.
Many small businesses fail to see how the DMCA pertains to them. After all, why would a business that made jewelry be affected by the Digital Millennium Copyright Act?
If your business has any online component, you should be aware of the DMCA.
The DMCA is extremely important for Internet companies such as YouTube.com, Yelp.com, Facebook.com, Instagram, Internet Service Providers (ISP’s) and web hosting companies. Without the DMCA, these companies would be liable for any illegal pirating of copyrighted information that occurred on their website! Not only that, the DMCA is critical for just about any company or small business that permits its customers to publish information on the Internet. If your company website and allows customers to login into an “online account” and post any type of information whatsoever, you run the risk of your customers posting copyright-protected information of a third-party. Silly as it may sound, commentators on your blog can actually get you into serious trouble by posting materials they do not own. Without the DMCA you can potentially face copyright infringement or contributory copyright infringement actions against that third-party, even though you knew nothing of the specific content your customer posted.
(Side Note: If you are looking to start a website, we wrote a blog on the topic)
But fear not. If utilized properly, the DMCA will prevent your company from being liable in a potential copyright infringement action as against your customers, clients, visitors or userbase. This protection comes about by taking advantage of the “Safe Harbor Provision” of the DMCA, or Section 512, which contains some very specific requirements. We’ll talk about these specific provisions in an upcoming blog article.
But Do You Really Know It?
The second group of people around the DMCA are the folks who think they know all. But do they? If you rely on the DMCA for its safe harbor provision, I have two questions for you:
- Who is Your Designated Agent? Do you really have one? Test your proficiency by going to US Copyright Office’s Directory of Agents and verifying your company is actually listed. If it’s not, be sure to register with and use the Copyright Office’s online system to complete a Interim Designation of Agent to Receive Notification of Claimed Infringement.
- Do You Post Your DMCA Designated Agent on Your Website? The DMCA requires that one must “post such information on the service provider’s website in a location accessible to the public,” otherwise the safe harbor provisions is unavailable.
If you answered no to either of those questions, you will have a difficult time relying on the safe harbor provision of the DMCA. If you have a website that allows members of the public to publish any sort of information (whether it be images, video, documents or text) consider revising things so you can answer the above two questions in the affirmative — and keep an eye out for a (soon-to-be-released) blog article discussing the other requirements necessary to meet DMCA safe harbor requirements.
Law 4 Small Business. A little law now can save a lot later.