By Chris Brown, Attorney & Founder of Pixel Law
By Chris Brown, Attorney & Founder of Pixel Law
If you operate a website or app, you should consider implementing a DMCA policy to limit your exposure to copyright infringement claims. This is primarily true for websites and apps that allow users to upload content (photos, videos, etc.) that will be visible to other users.
In this post, we’ll explain your risk and how you can protect your startup or small business.
Related: Terms of Service 101 | Privacy Policies 101
Copyright Infringement 101
Copyright infringement occurs when someone, without authorization, copies, distributes, performs, or displays a work protected by copyright.
For example, if someone uploads a copyrighted music video to YouTube without permission, both the uploader and YouTube could be liable for copyright infringement. So how does YouTube avoid lawsuits?
The answer: The DMCA.
The DMCA Safe Harbor
To protect online service providers and website operators, Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998. The DMCA provides a safe harbor for internet businesses that implement a notice and takedown procedure.
To qualify for DMCA protection, website operators must:
- Not have actual knowledge of infringing materials on their service.
- Not financially benefit directly from infringing materials.
- Implement and comply with a notice and takedown procedure.
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How to Comply with the DMCA
To follow the DMCA’s requirements, website operators must:
- Designate a Copyright Agent to receive infringement claims (register here).
- Create a DMCA Policy and provide it to users.
- Follow your DMCA Policy when handling infringement claims, including potentially banning repeat offenders.
Your DMCA Policy
Your DMCA policy can be included in your Terms of Service or published as a standalone policy (with a reference link in your Terms of Service for easy access).
What to Include in a DMCA Policy
A proper DMCA policy should explain how copyright owners can file a claim and what details their claim must include. A valid copyright claim should have:
- Identification of the copyrighted work allegedly infringed.
- Identification of the infringing material (such as a URL link).
- Contact information of the person making the claim.
- A statement of good faith belief that the material is infringing.
- A statement under penalty of perjury that the claim is accurate and authorized.
- A signature of the person making the claim.
Handling Copyright Claims
If you receive a valid copyright claim under your DMCA policy, you must:
- Expeditiously remove or disable access to the alleged infringing material.
- Notify the user who uploaded the material about its removal.
- Allow the user to file a counter-notice if they believe their content was removed in error.
If a counter-notice is filed, consult a copyright attorney before taking further action. Additionally, you may be required to remove repeat offenders from your service.
The DMCA Only Applies to Copyright Infringement
The DMCA does not protect against:
- Trademark infringement
- Defamation claims
- Violations of NDAs or trade secrets
If you receive a legal notice unrelated to copyright, do not assume the DMCA applies.
What You Should Do
Understanding and implementing a DMCA policy can protect your business, but it must be done correctly. If you’re unsure how to comply with the DMCA, consult a startup or small business lawyer in Boulder or Kansas City to ensure your policy is properly structured. A small investment now can prevent costly legal issues later.
*This article is general in nature and is not legal advice.