Under the Digital Millennium Copyright Act (DMCA), Internet service providers (ISPs) may not be liable for copyright infringement from copyrighted material passing through their systems if they take certain steps to police infringement on their site(s). This is called a "safe harbor." Thus, all services that host user-generated content must have some sort of system for people to give notice that the material is copyrighted.
Requirements for an ISP to Qualify for a Safe Harbor
There are several requirements for ISPs to have this safe harbor:
- The ISP must not have actual knowledge of the copyrighted material being posted on their servers.
- If someone gives notice of copyrighted material being posted on their site, they must take reasonable actions to remove the material from their networks.
- They must not receive any direct financial benefit from the infringing material.
- They must not have any control over the content of the material posted on their servers.
- They must also have an appointed agent to receive notices of infringing material.
Notice and Takedown Procedures
When a copyright owner sees his or her material posted on a website, he or she must send a notice (commonly called a "DMCA takedown notice") to the operator of the website, explaining that the material is infringing before a lawsuit can be filed. Most website owners have a form users can fill out that has all the notice requirements built in.
The operator of the website should then notify the person who posted the material that it is going to be taken down. The person who posted the material then has the option of sending a counter-notice, to argue that the material does not actually violate copyright laws.
Generally, the operator of a website will not be subject to liability if a takedown notice is received and acted upon.
Do I Need to Hire a Lawyer?
If you run a website or own copyrighted material, you should probably consult an intellectual property lawyer in order to fully understand DMCA liability as it applies to your work.