Does Your Website Need a DMCA/Copyright Policy?

If you operate a website, you should consider enacting a DMCA policy to limit your exposure to copyright infringement claims. In this post, we’ll explain your risk and how you can protect your startup or small business.

(Related: Learn more about Terms of Service and Privacy Policies.)

Copyright Infringement 101

Copyright infringement occurs when someone, without authorization, copies (or creates derivative works from), distributes, performs, or displays, a work which is protected by copyright by another party.

As a result, if a copyrighted music video is uploaded to YouTube without authorization, both the person that uploaded the video and YouTube would likely be liable for copyright infringement. Naturally, you might be thinking, how in the world is YouTube still in business if they are liable for infringing videos on their service?

Well, they can thank the DMCA.

The DMCA “Safe Harbor”

To protect internet service providers and website operators, Congress enacted the Digital Millennium Copyright Act of 1998 to provide a safe harbor to internet businesses that implement a notice and takedown procedure.

More specifically, the DMCA provides that website operators are immune from copyright infringement if:

(a) they don’t have actual knowledge of the infringing materials on their services,

(b) don’t receive a financial benefit directly attributable to the infringing materials; and

(C) implement and comply with a notice and takedown procedure.

To implement and follow a notice and takedown procedure, the website operator must:

(1) designate a Copyright Agent to receive infringement claims (you can do that here);

(2) create a DMCA Policy and provide it to the site’s users; and

(3) comply with your DMCA Policy if you receive an infringement claim (including potentially removing repeat offenders from your service).

Your DMCA Policy

You can include your DMCA in your Terms of Use or similar legal terms, or you can make your DMCA Policy a standalone policy on your service. If you make it a standalone policy, it is a good practice to reference it in your Terms of Use to make it easy to find.

As for the contents, your DMCA Policy should clearly detail how copyright owners can file a claim of infringement as well as what the claim must include. Here is an example of what your policy might require the claim include:

(i) identification of the copyrighted work;

(ii) identification of the alleged infringing material;

(iii) contact information of the person making the claim.

(iv) a statement that the claim is made in good faith.

(v) a statement, made under penalty of perjury, that the claim is accurate and that the person is authorized to make it; and

(vi) a signature of the person making the claim.

If you receive a valid copyright claim after implementing your DMCA Policy, you must then expeditiously remove or disable access to the alleged infringing material and notify the user that uploaded the material of the removal so they may file a counter-notice alleging that they are not, in fact, committing copyright infringement. If the user makes such a counter-notice, it is a good idea to talk with a copyright attorney about the situation to determine your next steps. Additionally, you may be required to remove repeat offenders from your service.

Note: The DMCA Only Applies to Copyright Infringement

The DMCA won’t protect you from trademark infringement, violations of NDAs or trade secret laws, defamation claims, and other claims. If you receive a legal letter regarding something other than copyright infringement, don’t mistakenly rely on your DMCA Policy for protection.

What You Should Do

I know, everything above can be confusing. But this part is easy. If you don’t understand your risk or how to properly implement a DMCA policy, talk to a startup or small business lawyer about your options. A little investment up front can save you a lot of money and headaches down the road.

(This article is general in nature and is not legal advice.)