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Safety from copyright liabilityBy Elizabeth T. Russell
If you thought AOL or AT&T, your response is typical. Both, certainly, provide online services. It might surprise you to learn, however, that U.S. copyright law defines online "service provider" so broadly, it also includes businesses that offer bulletin board services, online forums, employee e-mail accounts and even companies that simply provide hyperlinks to material residing elsewhere online. For most businesses, this is good news. It means there are steps you can take to protect your business from liability for copyright infringement committed by others. Inexplicably, however, very few businesses are actually taking these steps. The Digital Millennium Copy-right Act (DMCA) became law in October 1998. It had effects on a host of arenas, such as Web casting, distance education and motion picture rights. Of critical importance to business is Title II of the DMCA: the "Online Copyright Infringement Liability Limitation Act." The basic premise of Title II is this: We have a societal interest in promoting the global availability of online digital content. Online service providers (OSPs) facilitate this objective by providing the tools for third-party users to post digital materials. When a third-party user posts infringing material, however, the OSP can be held contributorily and/or vicariously liable for copyright infringement. Without some sort of "safe harbor," the liability risk to OSPs would become unacceptable, causing OSPs to cease providing the tools and services upon which we have come to depend. Title II provides that "safe harbor." In fact, it establishes four separate "safe harbor" liability limitations for OSPs engaged in various categories of conduct. The first limitation applies to OSPs that provide "transitory digital network communications." OSPs in this category transmit digital information from one point on a network to another at someone else's request. The second limitation is available for service providers who engage in the practice of "system caching," that is, retaining copies, for a limited time, of material that has been made available online by a person other than the OSP, and then transmitting that information to someone else. The third and fourth "safe harbors" apply to the broadest range of businesses. The third limits the OSP's liability for infringing material that is hosted on the OSP's own systems; the fourth limits OSP liability for providing "information location tools" such as hyperlinks, online directories and search engines. Merely qualifying as a service provider under one of the four limitations does not provide your business with protection. Your business cannot enjoy the benefits of "safe harbor" until you have taken affirmative steps set forth in the law. All four limitations require the service provider to adopt, implement and inform users of a policy containing certain required elements. All four also require the OSP to accommodate and not interfere with "standard technical measures," which refers to protections such as firewalls, digital watermarks, and other security measures. The third (and arguably the fourth) limitation requires the OSP to designate an agent to receive complaints of copyright infringement, to file information about the designated agent with the U.S. Copyright Office, and to adopt specified procedures for "taking down" infringing material. Statutory damages for copyright infringement can be as much as $150,000 per infringement. Title II provides a set of relatively simple steps you can take to protect your business from potentially devastating liability, but you have to take action. If you were traveling to the jungle, wouldn't you first update your inoculations? Well, the Internet's a jungle. Be prepared. madison.com ©2009 Capital Newspapers. All rights reserved. |
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