Quick and Easy Copyright Infringement Risk Management

One of our biggest challenges is encouraging our smaller clients to incur some expense – legal or administrative – to address what we refer to as the Legal Essentials™.  “Compliance and Risk Management” is one of the topics that we emphasize and one of our prior articles discusses enterprise risk management for smaller businesses.

So, we are pleased to remind our clients and friends of a bargain in intellectual property risk management!

US Copyright Law (17 USC Section 512) provides for a broad limit of liability for internet “service providers” where material stored on a system operated by (or for) the service provider is the subject of a copyright challenge.  This is a substantial benefit for clients that provide services like website hosting and virtual server operation, or who maintain websites that receive and display third party content.

Before you dismiss this risk as not relevant to your business, consider carefully your business model and how potentially copyright-infringing material might end up stored or transmitted via your system infrastructure.  If your website allows visitors to post content in any way – for example, to comment on a blog post – you have created a situation where that visitor could post or link to copyright-infringing material and you are potentially a “service provider” under this law.

The “cost” of managing this risk – in both financial and administrative terms – is low.  You must name an agent, called a “DMCA Agent,” because the law that created the limit of liability is called the Digital Millennium Copyright Act (DMCA).  The DMCA Agent designation process is straightforward.  You need to choose a DMCA Agent, who could be an employee, but preferably would be a third party agent (who are available to serve at nominal cost).  You are also required to adopt, implement, and disclose a policy providing for termination of customers/subscribers who are repeat copyright-infringers.   Sample DMCA Notice and Takedown Procedures are widely available online.  Many service providers’ Terms of Use already address the necessary elements of this type of policy.  You must also accommodate and not interfere with certain “standard technical measures” used by copyright owners to identify or protect copyrighted works.

So, for most service providers, the key “extra” step is the designation of a DMCA Agent.  This designation can be made electronically, and the (current) Copyright Office fee for designating an agent is only $6.  Even using a third party DMCA Agent the cost is very affordable.

If you were on top of things and designated a DMCA Agent years ago when the law was first enacted, the Copyright Office has updated their prior paper-based system.  You have until December 31, 2017 to complete the required electronic designation to replace your prior paper submission.

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