Protect Your Forum With D.M.C.A Safe Harbor

[jackflash]

Protect Your Forum With D.M.C.A Safe Harbor

I post this once a year or when I see a proliferation of copyright lawsuits against web publishers - here's some novel (not legal) advice.

It seems that the safest way to protect your community from copyright law firms is to claim D.M.C.A Safe Harbor protection.  By registering your sites on Copyright.Gov you might save yourself a lot of headache and big $$ money from content posted on your site without the copyright holder's permission - if one of your users posts someone else's content on your site without their permission, you might be liable.   Safe Harbor was designed by congress to protect web publishers from such liability.

As I have been involved in several copyright / trademark lawsuits at the federal level, registering your site on Copyright.gov for $6.00 may provide a layer or protection for you and it's super easy to do.

1. Go to the DMCA page on Copyright.gov HERE and register an account/agent (you or whoever you designate to receive legal notices).  After you register an account, simply add all of your websites and pay the $6.00 fee.  Note that each time you add or edit your sites, a $6.00 fee will apply each time.  One important note is that ( 37 C.F.R. § 201.38) requires you to use a physical street address and not a P.O. Box.  I have found generally that once a law firm understands that you have Safe Harbor, they might not even bother you because there's nothing in it for them ($ damages).

2. Add a DMCA safe harbor statement on your website - this site is an excellent resource to help you frame it - please read it.

3. On your forum, in an easy to find place, create a page/post to your DMCA statement and create a menu link to it.

If you have any questions, I will try to assist.

 

[Unlucky]

Does this apply to UK companies?

[jackflash]

On 7/20/2020 at 2:34 PM, Unlucky said:

Does this apply to UK companies?

U.S. Courts have found E.U. sites liable when their server/hosting company is U.S. based.  They have also found them liable if the website's traffic has a significant U.S. user base.  

Edited July 22, 2020 by jackflash

[ahc]

All OSP/ISPs who follow proper guidelines have this protection automatically given to them by OCILLA, which was included in the DMCA.  You don't need to pay anyone to handle this for you and you don't have to register anywhere or pay a fee for it either. 

Quote

Section 512(c) applies to OSPs that store infringing material. In addition to the two general requirements that OSPs comply with standard technical measures and remove repeat infringers, § 512(c) also requires that the OSP: 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.

That's the official act wording, but to put it in a more general sense, you would be found liable only if any of the following are true:

• you were proven aware of the infringing content and made no attempts to remedy it
• you refused to remove and/or ban repeat offenders
• you made a profit off the display/sale/distribution of the infringing content
• the copyright owner sent a formal take-down request of the alleged infringing content and you failed to remove the content within a reasonable amount of time.

If there is a dispute between the copyright owner and the accused (a counterclaim was submitted against a take down request), they must settle it in court.  You would send the information to both parties and essentially wash your hands of the situation unless you're guilty of one of the things above.  All you need is a dedicated form or email address to handle copyright related requests and claims, and act appropriately and quickly whenever necessary.  It's simple to maintain and will work for you 99.99% of the time if you are running a clean site.  (Also make sure information about where and how to submit a request or claim on your website is easily accessible.)

Edited July 26, 2020 by ahc

[jackflash]

On 7/25/2020 at 10:18 PM, ahc said:

All OSP/ISPs who follow proper guidelines have this protection automatically given to them by OCILLA, which was included in the DMCA.  You don't need to pay anyone to handle this for you and you don't have to register anywhere or pay a fee for it either. 

That's the official act wording, but to put it in a more general sense, you would be found liable only if any of the following are true:

• you were proven aware of the infringing content and made no attempts to remedy it
• you refused to remove and/or ban repeat offenders
• you made a profit off the display/sale/distribution of the infringing content
• the copyright owner sent a formal take-down request of the alleged infringing content and you failed to remove the content within a reasonable amount of time.

If there is a dispute between the copyright owner and the accused (a counterclaim was submitted against a take down request), they must settle it in court.  You would send the information to both parties and essentially wash your hands of the situation unless you're guilty of one of the things above.  All you need is a dedicated form or email address to handle copyright related requests and claims, and act appropriately and quickly whenever necessary.  It's simple to maintain and will work for you 99.99% of the time if you are running a clean site.  (Also make sure information about where and how to submit a request or claim on your website is easily accessible.)

You need to read this more carefully because you've missed the key part -  the below provision (quoted in italic) is directly from the link in which you provided above and states:

512(c)(2)

(2) Designated agent.—The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address of the agent.

(B) other contact information which the Register of Copyrights may deem appropriate.

In other works, 512(c)(2) provides safe harbor IF you've taken the key step of registering with the U.S. Copyright Office.  If you have not registered your site with the U.S. Copyright Office to complete your DMCA Safe Harbor, your defense mechanism is useless and you have waived those rights.

[Nihonto]

Good info and easy to navigate. Thanks.

[jackflash]

On 8/10/2020 at 8:52 AM, Brian Robinson_47676 said:

Good info and easy to navigate. Thanks.

You're welcome.  Take advantage of the protection.

[pro-dev]

thank you for that❗ its 6$ forever?

[jackflash]

1 hour ago, pro-dev said:

thank you for that❗ its 6$ forever?

Each time you make a change to your account - add a site, change address, etc., it's $6.00.

If you leave your account unchanged, no other fees apply.  Just make sure that you check your account periodically here:
https://dmca.copyright.gov/osp/

[pro-dev]

1 hour ago, jackflash said:

Each time you make a change to your account - add a site, change address, etc., it's $6.00.

If you leave your account unchanged, no other fees apply.  Just make sure that you check your account periodically here:
https://dmca.copyright.gov/osp/

thank you!

[BariatricPal]

This is priceless advice!! Higbee and associates served us a year ago for a copyrighted image a member had posted many years ago on our forum. The member hyperlinked an image, I wasn't even the website hosting it! I wish we would have had registered a DMCA agent before we were served. I ended up settling for $500. It was a huge hassle and one that we could have avoided for just $6.

On 7/25/2020 at 10:18 PM, ahc said:

All OSP/ISPs who follow proper guidelines have this protection automatically given to them by OCILLA, which was included in the DMCA.  You don't need to pay anyone to handle this for you and you don't have to register anywhere or pay a fee for it either. 

That's the official act wording, but to put it in a more general sense, you would be found liable only if any of the following are true:

• you were proven aware of the infringing content and made no attempts to remedy it
• you refused to remove and/or ban repeat offenders
• you made a profit off the display/sale/distribution of the infringing content
• the copyright owner sent a formal take-down request of the alleged infringing content and you failed to remove the content within a reasonable amount of time.

If there is a dispute between the copyright owner and the accused (a counterclaim was submitted against a take down request), they must settle it in court.  You would send the information to both parties and essentially wash your hands of the situation unless you're guilty of one of the things above.  All you need is a dedicated form or email address to handle copyright related requests and claims, and act appropriately and quickly whenever necessary.  It's simple to maintain and will work for you 99.99% of the time if you are running a clean site.  (Also make sure information about where and how to submit a request or claim on your website is easily accessible.)

Please don't give out legal advice which could end up costing forum owners a ton of money and headaches. In theory you might be right but the courts have ruled otherwise. 

I suggest every forum owner pay the $6 fee if you'd like some peace of mind.

[ahc]

I'll be sure to tell the US legal system that the last 8 years they've protected me against a third-party claim was done wrong because someone on Invision's forums said so.  Crazy!  😋 

 

Edited October 1, 2020 by ahc

[RocketStang]

I'd do it for $6 but I am a little hesitant to add my personal address and info into a publicly visible database associated with all my websites and aliases??

Edited October 1, 2020 by RocketStang

[Ocean West]

if you a corporation and already have a designated agent for process serving shouldn't that be sufficient?

[jackflash]

22 hours ago, BariatricPal said:

This is priceless advice!! Higbee and associates served us a year ago for a copyrighted image a member had posted many years ago on our forum. The member hyperlinked an image, I wasn't even the website hosting it! I wish we would have had registered a DMCA agent before we were served. I ended up settling for $500. It was a huge hassle and one that we could have avoided for just $6.

Please don't give out legal advice which could end up costing forum owners a ton of money and headaches. In theory you might be right but the courts have ruled otherwise. 

I suggest every forum owner pay the $6 fee if you'd like some peace of mind.

Higbee is famous for doing this.  1. There are court precedents for hyperlinked images.  2.  They can only go back three years to the date of infraction.  3.  Was the image posted registered with the U.S. copyright office?  Those are big questions.  In your case though - since it was hyperlinked, they could go pound sand.

21 hours ago, RocketStang said:

I'd do it for $6 but I am a little hesitant to add my personal address and info into a publicly visible database associated with all my websites and aliases??

For the layer of legal protection, it's well worth it.

21 hours ago, Ocean West said:

if you a corporation and already have a designated agent for process serving shouldn't that be sufficient?

A designated agent alone is not sufficient.  You have to have your website(s) listed in the DMCA Designated Agent Directory and then list your designated agent as the one to receive notices.  As a note, you can list you or anyone to receive such notices.

    Edited October 2, 2020 by jackflash

[BariatricPal]

2 hours ago, jackflash said:

Higbee is famous for doing this.  1. There are court precedents for hyperlinked images.  2.  They can only go back three years to the date of infraction.  3.  Was the image posted registered with the U.S. copyright office?  Those are big questions.  In your case though - since it was hyperlinked, they could go pound sand.   

The image was registered by an artist in the US.

I believe it was posted more than 3 years prior to my case. Not sure where you are getting your legal information from. 

The image was posted/hosted on a news website in France and hyperlinked by one of our members. 

I thought they could go pound sand as well. It's not that simple... recent decisions from the Southern District of New York and the Northern District of California have overturned those precedents on hyperlinks.

Paul Alan Levy from Public Citizen Litigation Group (or Citizen.org) agreed to take on my case pro bono. He agreed that it wasn't a guaranteed win, because of those recent decisions.

Higbee wanted a lot more than $500 to settle. I had someone contact the artist (and their family) and essentially legally "blackmailed" them into telling Higbee to drop or settle the case against us or else we would launch a massive publicity campaign against the artist for taking advantage of people that suffer from obesity 🙂 

[jackflash]

9 hours ago, BariatricPal said:

The image was registered by an artist in the US.

I believe it was posted more than 3 years prior to my case. Not sure where you are getting your legal information from. 

The image was posted/hosted on a news website in France and hyperlinked by one of our members. 

I thought they could go pound sand as well. It's not that simple... recent decisions from the Southern District of New York and the Northern District of California have overturned those precedents on hyperlinks.

Paul Alan Levy from Public Citizen Litigation Group (or Citizen.org) agreed to take on my case pro bono. He agreed that it wasn't a guaranteed win, because of those recent decisions.

Higbee wanted a lot more than $500 to settle. I had someone contact the artist (and their family) and essentially legally "blackmailed" them into telling Higbee to drop or settle the case against us or else we would launch a massive publicity campaign against the artist for taking advantage of people that suffer from obesity 🙂 

Higbee + Seliger?

I am aware of those two recent decisions, however they are out of scope as to what I posted.  What I said above was "if one of your users posts someone else's content on your site..."  That's not what happened in the Goldman and Free Speech Systems cases.  In both of those cases, the publisher themselves posted the images leaving it a little clouded.

It will be interesting to see if the Free Speech Systems cases is appealed to the U.S. 9th.

DMCA protection is so important.

Edited October 3, 2020 by jackflash

[Greek76]

You think it’s wise to put down your full name and address on your forum? Everyone will have access to it.

[jackflash]

4 hours ago, Greek76 said:

You think it’s wise to put down your full name and address on your forum? Everyone will have access to it.

You're not putting your name and address on your forum.  Rather you're registering it and disclosing it with the U.S. Gov't.  Honestly, with the exception of attorneys not many people even know it exists or where to even look for it. 

You can also hire an attorney to receive any physical notices if you like.  Either way, it's insurance from predatory actors.

Edited December 6, 2020 by jackflash

[Greek76]

8 hours ago, jackflash said:

You're not putting your name and address on your forum.  Rather you're registering it and disclosing it with the U.S. Gov't.  Honestly, with the exception of attorneys not many people even know it exists or where to even look for it. 

You can also hire an attorney to receive any physical notices if you like.  Either way, it's insurance from predatory actors.

Gotcha and thanks for clarifying this. It's definitely a good idea to do. 

[AlexWebsites]

10 hours ago, jackflash said:

You're not putting your name and address on your forum.  Rather you're registering it and disclosing it with the U.S. Gov't.  Honestly, with the exception of attorneys not many people even know it exists or where to even look for it. 

You can also hire an attorney to receive any physical notices if you like.  Either way, it's insurance from predatory actors.

The $6 does not give you added insurance, it just lists you in the directory so you can be found. The law is the law and as long as you remove the content immediately after being notified, you should be fine. If you use public domain registration and that domain has a good contact, you can be found. If you use private registration and attempts to contact you fail and can be proven that you did not respond, well that can turn into an issue. In the end, just take down the content asap and make sure you can be reached. I've also received info from my server company in the past when it was reported to them about something on a particular site was an issue. They would shut down the server if I didn't comply and remove the content, as some liability is with them as well.

Doesn't hurt to register I suppose.

[jackflash]

2 hours ago, AlexWebsites said:

The $6 does not give you added insurance, it just lists you in the directory so you can be found. The law is the law and as long as you remove the content immediately after being notified, you should be fine. If you use public domain registration and that domain has a good contact, you can be found. If you use private registration and attempts to contact you fail and can be proven that you did not respond, well that can turn into an issue. In the end, just take down the content asap and make sure you can be reached. I've also received info from my server company in the past when it was reported to them about something on a particular site was an issue. They would shut down the server if I didn't comply and remove the content, as some liability is with them as well.

Doesn't hurt to register I suppose.

You should better read how the DMCA safe harbor functions and the requirements thereof.

Read the link below concerning a recent article on how Spinrilla lost is U.S. Federal Court because they lacked a DMCA registered agent "The site didn't have the requisite repeat infringer policy or a designated agent to handle DMCA-related claims until after the complaint was filed, so it can't rely on the safe harbor for protection from the infringements at issue here."

https://www.hollywoodreporter.com/thr-esq/hip-hop-streaming-platform-spinrilla-found-liable-for-users-copyright-infringement

To receive DMCA protection you must designate a registered agent online with the U.S. Copyright Office.   Copyright holders and attorneys are in no way required to find a website's owner through a domain registry service to file a take down notice.

You should research facts about DMCA, etc. as there is a lot of material out there.

 

 

 

[Greek76]

Any ideas of where to a get a statement for our forums or do we need to write them up ourselves? 

[jackflash]

On 12/9/2020 at 9:20 AM, Greek76 said:

Any ideas of where to a get a statement for our forums or do we need to write them up ourselves? 

You can search for a DMCA statement.  Two things to make note of:

1. Make sure you provide a physical address and an e-mail address

2. Courts appear to be looking for a repeat offender policy - something like this:

ACCOUNT TERMINATION / REPEAT OFFENDER POLICY
I. Under section [512(i)(1)(A)] of the 1998 Digital Millennium Copyright Act, users who infringe by posting copyrighted material may have their account terminated. Additionally, we may be required to disclose your identity should a copyright infringement complaint be filed against you.

II. Repeat infringers: Pursuant to § 512(i), it is the firm policy of this site to terminate the account of repeat infringers when appropriate.

• We maintain a log of all DMCA notices received,

• We will block your account name and e-mail address from further uploading of all material,

• We will place your e-mail address into a DMCA banned list and

• Prohibit you from reopening  a terminated account.

[gigantor]

On 7/17/2020 at 1:54 PM, jackflash said:

It seems that the safest way to protect your community from copyright law firms is to claim D.M.C.A Safe Harbor protection.

Thank You jackflash!

I just registered with the copyright.gov website. I would like to add a few things:

1) You must provide your information to the government in order to create an account. Only your name and address will be listed in a search.

2) After creating an account, you create a "Designated Contact" to receive take down notices. The Designated Contact does NOT have to be a person, it could be "DMCA Admin" and it CAN be a P.O. Box.

3) You must renew every three years.

 

Edited December 31, 2020 by gigantor