Posted on September 30, 2011 by David Oxenford

Claiming Safe Harbor Protection for User Generated Content - Copyright Office Proposes Changes to Registration of Agent for Service of Take Down Notices

Do you allow the posting of content created by third parties on your website (e.g. videos, audio files, or even written comments)?  Do you run any on-line service where you collect information provided by third parties (whether that be a dating service, auction site or other classified service)?  If you do, you probably know that you are safe from copyright claims for infringing content that is posted by those who are not your employees or agents if you follow certain steps.  We have written about these steps to give you the "safe harbor" from copyright liability for "user-generated content" before.  The steps include requirements that you not encourage or profit from the infringing content, that you have terms of use for your service that forbid users from posting infringing content, and that you take down infringing content when you receive notice from copyright holders that it has been uploaded to your site or service by a third party.  To take advantage of this safe harbor from liability, services are required to register with the Copyright Office the name of someone in their company who can be served with "take-down notices" from copyright owners.  The process of registration is now proposed to be changed in a Notice of Proposed Rulemaking just issued by the Copyright Office.  Comments on this notice can be filed through November 28. Replies are due by December 27.

The safe harbor was created by the Digital Millennium Copyright Act, adopted in 1998.  Since that time, the registration of agents to receive take-down notices has been governed by interim rules.  Services register by sending a paper form and a filing fee to the Copyright Office, and that information is manually entered by the Copyright Office into a list that is available on the Copyright Office website.  From experience, the time from the filing of such a registration to its appearance on the Copyright Office's website can take several weeks or more.  The Copyright Office, in its Notice, states that it has done some informal checks on the information in its database of registered agents, and found that the list contains duplicate registrations, registrations for companies or sites that are no longer in operation (services are supposed to tell the Office when they stop their operations), and many outdated addresses (services are supposed to update their agents as employees change, but apparently they sometimes forget).  The NPRM proposes to move to an electronic registration system, which will automatically request a verification of the registered information on a regular basis.  In making this proposal, the Copyright Office asks for public comment on a number of issues.

The process proposed by the Copyright Office, and the issues that it feels that it needs to address before implementing the system, are many.  They include the following:

  • Should the system be organized based on the name of the Service, or based on the URLs of the websites registered?
    • If registered by website, are "apps" developed for mobile devices all associated with a readily identifiable URL that a copyright holder will know if it wants to file a take-down notice, or should apps be registered differently?
    • If registered by Service, should subsidiaries and alternate trade names be registered on one filing, or should each have to register independently?
  • Should a service be able to register an agent who is not an employee (e.g. a law firm or other service)?  The Copyright Office expresses reluctance, as such agents may not be diligent in processing take-down notices.
  • Must an individual name be provided, or is an office or title at a Service sufficient?
  • Should email addresses of the services (as well as those of the agents) be provided?  Should email addresses be made public in the Copyright Office's database?
  • How should the Copyright Office deal with situations where there are duplicate entries, such as when a seller of a URL does not notify the Copyright Office of its discontinuance of use, and the Buyer registers an agent for the same URL?
  • How can the Copyright Office guard against fraudulent registrations?
  • What information should be provided in the registration?  (Currently legal name, address, alternate names, phone number and email address of the agent are required)
  • Should the Copyright Office maintain periodic snapshots of its database ( what they call "versioning") so that parties can determine whether a proper agent was designated at various times in the past?
  • The Copyright Office suggests that Services may need to periodically validate the information that they have on file.  They ask how often such validation should be required?

An automated system, where information is easily retrievable, and which automatically reminds services to update their information, seems like a real benefit both to copyright holders (who will be able to more easily access the proper person for take-down notices) and service providers (who will be reminded to keep their information current).  Obviously, there are many questions to be answered before the new system can be implemented.  However, with so many businesses now allowing some form of user-generated content, this is an important process with broad impact.  So review the Copyright Office's NPRM, and file comments on issues that are raised by the NPRM.  The new system will eventually require new registrations from all services, but expect that it will be some time before the Office resolves the issues raised in this proceeding, and develops the software system necessary to implement that proposals that it has made in the NPRM.  But the process is underway. 

Also, remember that there is also a safe harbor from most other legal liability for user generated content (including defamation) under provisions of the Communications Decency Act.  We have written about that issue before (see, for instance, this article).  Thus, if you follow the rules, service can allow users to post information to their sites without fear of legal liability. 
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Posted on October 16, 2010 by David Oxenford

David Oxenford Conducts Webinar for State Broadcast Associations on Legal Issues in the Digital Media World - Including a Discussion of Ephemeral Copies of Sound Recordings

Dave Oxenford this week conducted a seminar on legal issues facing broadcasters in their digital media efforts.  The seminar was organized by the Michigan Association of Broadcasters, and originated before a group of broadcasters in Lansing, but was webcast live to broadcasters in ten other states.  Dave addressed a variety of legal issues for broadcasters in connection with their website operations and other digital media platforms.  These issues included a discussion of service marks and copyrights, employment matters, music on websites, the use of social media, privacy, and sponsorship disclosure.  The slides used in the Lansing presentation are available here.    During the seminar, Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the content posted to their website by their audience, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   

One of the most common issues that arise with radio station websites is the streaming of their programming.  In August, Dave gave a presentation to the Texas Association of Broadcasters providing  a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies.  That summary to Internet Radio issues is available here.  Additional information about use of music on the Internet can be found in Davis Wright Tremaine's Guide to The Basics of Music Licensing in a Digital Age.   Dave also presented this seminar at the Connecticut Broadcasters Association's Annual Convention in Hartford on October 14.

During the webinar, one of the issues that came up in the discussion of music use on the Internet was the provisions of Section 112 of the Copyright Act that allow broadcasters to make "ephemeral copies" of sound recordings to facilitate a broadcast or webcast transmission, but which require that any such copies be kept for no more than 6 months.  As discussed at the seminar, agreements entered into last year by the NAB and major record labels and A2IM, the association that represents that major independent labels, in connection with the NAB/SoundExchange settlement of the dispute over Internet radio royalties, contained provisions that agreed to waive that 6 month limit on the retention of ephemeral copies for broadcasters who signed the settlement agreement on webcasting royalties.  More details about the waiver of this aspect of the ephemeral royalty issue, and about the waivers of the performance complement which would otherwise restrict programming options of webcasters (including how many songs in a row by the same artist could be played) are contained in this post on our blog summarizing the waivers entered into in connection with the NAB/SoundExchange agreement.

The associations which co-sponsored the webinar were the state broadcast associations of the following states:  Illinois, Kansas, Pennsylvania, Missouri, Nebraska, Nevada, North Dakota, Oregon, Tennessee and Indiana. 

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Posted on October 10, 2010 by David Oxenford

Department of Commerce Seeks Comments on The Relationship of Protecting Copyrighted Content and Innovation in the Internet Economy

Last week, the Department of Commerce's Internet Policy Task Force asked for comments on the relationship between the protection of copyrighted content on the Internet and the effect of such protections on technology innovation and the expectations of consumers.  The purpose of the inquiry is to develop a report to be circulated among the various government departments that have power over the enforcement of copyrights and the development of rules and regulations that deal with copyrighted materials - to essentially develop government policy in this area.  While the request for comments dwell on the concerns about copyright infringement that are raised by many Internet applications, the proceeding will obviously be controversial among media companies.  Many of these companies are concerned about the unauthorized use of their content on various websites, while other media companies (or divisions of the same media companies who are concerned about the unauthorized use of content) are concerned about too tight restrictions on the use of copyrighted content and how that will impact various websites, especially those that feature user-generated content.

As we have written before, the Digital Millennium Copyright Act allows Internet companies to allow users to post material on their websites, without fear of liability, if they take certain precautions - including adopting terms of use warning users that they need to observe the intellectual property rights of others, not otherwise encouraging infringing uses, registering with the Copyright Office to provide a contact person at the website operator that a copyright owner can contact if they believe that their content is being used improperly, and taking steps to take down improper content if the website operator is notified of the infringing use.    This Commerce Department's notice asks if this "safe harbor" provision has served the public interest, or if adjustments to this regime should be made.  Obviously, many websites that have grown businesses based on user generated content (e.g. many of the social networking and video-sharing sites) and will be very concerned with a proposal to alter their safe harbor and require them to take on a greater burden of reviewing content for potential copyright violations, while many content owners, who have complained about the inability to monitor all of these sites, may be looking for these reforms.   Obviously, there will be conflicting views on these proposals.

Comments in this proceeding are due by November 19.  Very specific filing requirements are contained in the notice.  Companies interested in protecting their content, as well as those concerned with the impact on their businesses from a change in current policies, should file comments by that date.  While changes in some of the current policies require changes in the law that only Congress can make, this proceeding can impact the Administration's legislative agenda.  So express your opinions. 
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Posted on April 8, 2008 by David Oxenford

Court Affirms Website Owner's Insulation from Liability for User-Generated Content - If the Website Does Not Contribute to the Liability

Website operators who allow the posting of user-generated content on their sites enjoy broad immunity from legal liability.  This includes immunity from copyright violations if the site owner registers with the Copyright Office, does not encourage the copyright violations and takes down infringing content upon receiving notice from a copyright owner (see our post here for more information).  There is also broad immunity from liability for other legal violations that may occur within user-generated content.  In a recent case, involving the website Roommates.com, the US Court of Appeals determined that the immunity is broad, but not unlimited if the site is set up so as to elicit the improper conduct.  A memo from attorneys in various Davis Wright Tremaine offices, which can be found here, provides details of the Roommates.com case and its implications.

In the case, suit was filed against the company, alleging violations of the Fair Housing Act, as the site had pull-down menus which allowed users to identify their sex, sexual orientation, and whether or not they had children.  Including any of this information in a housing advertisement can lead to liability under the law.  The Court found that, if this information had been volunteered by users acting on their own, the site owner would have no liability.  But because the site had the drop-down menus that prompted the answers that were prohibited under the law, liability was found.

The protections offered for those hosting sites come from two separate statutes.  The protections against copyright infringement claims are in the Digital Millennium Copyright Act, and require that the site owner take several steps to secure the safe harbor from liability.  Registration of an individual who can be contacted by a copyright owner if infringing material is posted is required.  The Copyright Office's instructions for such registration can be found here.  The site owner must take down infringing material if properly notified, and should not encourage or promote such infringement.

The protection against most other liability stems from Section 230 of the Communications Decency Act, and has, for the most part, been interpreted very broadly to protect the company running the website from anything posted on the site by third parties.  The holding of the Roommates.com case, while signaling a slight retreat, basically brings the requirements for the safe harbor closer to those for copyright protection in that the site owner cannot be a part of the activity that causes to liability - here by providing the option to choose certain classifications that could be construed as a violation of the law.  While the details and subtleties of the decision are discussed in greater detail in our firm's memo, the basic point seems to be that where the site owner provides part of the content that gives rise to the liability, it cannot claim the safe harbor.  If the same information had been posted by third-party site users without the prompts from the site itself, there likely would be full protection for the site owner.  Thus, to the extent that you are encouraging website users to post their own content on a site that you own, make sure that your site does not prompt the user into providing any specifics that could be found to have been specifically prompted by site material or information that you provide. 

Note that there are no doubt going to be other arguments about how overt a "prompt" must be for the site owner to fall outside the safe harbor.  Also note that this is the decision of just one US Court of Appeals and courts in other jurisdictions could decide a case like this differently (in fact there was a dissent here that worried about how lines would be drawn).  So there is no doubt that we have not heard the last of this issue.
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