Hyperlocal news publishers should be wary of their own users. The socialization of news sites encourages users to post comments and content, but such postings may be peppered with plagiarized content that infringes copyrights. Surprisingly, many hyperlocal publishers fail to take simple steps that could insulate their liability for content provided by users.
In 1998, Congress passed the Digital Millennium Copyright Act, or DMCA, which gives Web sites some immunity from copyright infringement claims for content uploaded at the direction of the sites’ users. For example, if a user uploads a photograph from another site to illustrate a posting, your site may be immune from the infringing photograph if you have a process in which the copyright owner can notify you of the infringement and you take down the photo promptly.
Here are the key requirements for DMCA immunity:
- The protection is limited only to content that users – namely, your readers and others who are not you employees or freelancers — upload on their own. This protection does not apply to content your editorial staff may produce.
- You must have a process in which the owner of a copyright can submit a complaint. Typically, this requires a link on your home page for “Copyright notices” where the copyright owners can click and submit a complaint.
- The copyright complaint form must comply with the DMCA. Copyright owners must state until penalty of perjury that they have the right to make the complaint, they must specify the item of content that is infringing, and they must give you the specific URL of the infringing content.
- You must have a phone number, email address, and a person designated in your organization to receive DMCA complaints. You must also register your designated person with the copyright office.
- Once you receive a complaint, you must take down or block the content. This notice and take down process is the key to getting immunity.
- The immunity does not apply if you have specific knowledge of the infringing content, or you had control over the posting of the content in which you financially benefited from it.
The benefits of the DMCA should not be underestimated. Last week, a United States Appeals Court ruled that the DMCA applied to sites where users uploaded and shared video. In UMG Recording, Inc. et al. v. Veoh Networks, decided December 20, 2011, the U.S. 9th Circuit Court of Appeals rejected Universal Studio’s claim that the DMCA protection was limited only to services that provided internet access, like Verizon, Comcast, or AT&T Uverse. Universal argued that the DMCA did not apply to Web sites where users shared content, but the court disagreed. This ruling is beneficial to hyperlocal news publishers that may allow users to post content and comments freely on the site.
More importantly, the Veoh ruling also negated a claim that having a general knowledge that some infringing material may have been uploaded on a site does not wipe away DMCA protection. The key is that the publisher does not have specific knowledge that an item is infringing and obtains direct financial benefit from the content.
Implementing a DMCA process on your site is a basic way to protection yourself from content submitted by users. As a reminder, this article is provided for information and background only, and it is not intended to provide specific, legal advice.
Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.