Posted on January 2, 2012 by David Oxenford

Copyright Office Report Recommends Federalization of Pre-1972 Sound Recordings - Possible Implications For Music Royalties and User-Generated Content

The Copyright Office last week issued its Report to Congress on pre-1972 sound recordings (with an Executive Summary), addressing whether to bring these recordings under Federal law.  As we wrote last year when the Copyright Office solicited comments on the issues raised by this report, sound recordings (i.e. aural recordings embodied in some fixed form like a CD, record or digital file) created in the United States prior to 1972 are not protected under Federal copyright law.  Instead, any protections accorded to these sound recordings are under state laws.  Congress, at the request of a number of archivist and music library groups, asked that the Copyright Office review the issues that would be raised by bringing these sound recordings under Federal law.  Some archivists and librarians feared that, in preserving old recordings, they could run afoul of state copyright laws, and that a unified set of rules under Federal law might be easier to follow.  Why is this issue more broadly important to the music community?  For internet radio station operators, it is because the proposals to Federalize all such recordings could have an impact on digital performance royalties (as there does not appear to be any public performance right in sound recordings under state laws and, under current law, these recordings would not be covered under the SoundExchange royalties that most noninteractive services play).  The Report is also significant in that it raises questions about copyright laws dealing with user-generated content, specifically whether the DMCA safe harbor provisions protecting the operators of Internet service companies from copyright liability for the content posted by third parties apply to pre-1972 sound recordings.

This is only a report to Congress, and such reports have no binding impact.  Instead, they merely set out the position of the authors of the report from the Copyright Office.  Such reports are also cited as evidence in court cases as to what the Office believes the current state of the law to be.  The Office has written a number of reports over the years making suggestions about how copyrights should be administered and, given the complexity of copyright law and the competing interests affected by any revisions to the laws, many of their proposals have never been implemented.  This report suggests that pre-1972 sound recordings be brought under Federal laws.  Specifically, the report suggests that current copyright holders get protection for most pre-1972 works until 2067 (when state law protections are to run out under the current law, allowing the works to move into the public domain).  The protections would be accorded to works that are used by the copyright holder (sold at some reasonable price) and registered with the Copyright Office at some point after a law implementing its proposals became effective.  Works from prior to 1923 would be subject to a similar use and registration process, but would only get 25 years of additional protection.  Seemingly, protections for works that are not registered would pass into the public domain after the applicable registration period expires.  For some webcasting companies, this change could have an immediate impact.

Some webcasting companies have taken the position that there is no obligation to pay SoundExchange performance royalties for pre-1972 sound recordings, as these recordings do not fall under Federal law, and the various states have not specifically adopted any sort of performance royalty obligation (and, even if such a state right could somewhere be found, there is no agreement with SoundExchange to act as a collective for any such rights).  Many smaller webcasters may have continued to pay for these recordings as it may take too much trouble to figure out which recordings are outside the SoundExchange royalty structure (and it is particularly difficult as recordings from prior to 1972 first released outside the US are already covered under Federal law).  Others may be concerned about claims by the record labels that the digitization of pre-1972 works created a new copyrighted work subject to Federal copyright law.  However, other webcasting services have concluded that these works are not subject to any SoundExchange fees and reduced their royalty obligations accordingly. The Copyright Office report did not dispute the conclusion that no SoundExchange royalty is due on pre-1972 sound recordings, and did not conclude that there is any obligation under state law to pay a performance royalty, but nevertheless suggested that the Federalization would benefit webcasting services by clearing up any ambiguity as to whether they may owe some performance royalty, or any royalties for the ephemeral copies made in the digital transmission process (as we've written before, the ephemeral copies made in the transmission process are included under Section 112 of the Copyright Act in the royalties paid to SoundExchange for post-1972 sound recordings). 

On another issue, the Report goes out of its way to suggest that safe harbor protections of Section 512 of the Copyright Act for User Generated Content do not apply to pre-1972 sound recordings.  The Report takes the position that the DMCA safe harbor is one that applies only to copyrights under Federal law, and since pre-1972 sound recordings are not covered under Federal law, then the safe harbor doesn't apply to them.  The Report takes issue with a recent US District Court decision in a case involving MP3Tunes that took exactly to opposite position - finding that the safe harbor was intended to protect website owners from liability for content uploaded by its users, and that excluding pre-1972 sound recordings from its coverage would be contrary to that purpose.  The Report did not take a position as to whether such user-generated content would be covered under Section 230 of the Communications Decency Act (which provides a similar safe harbor to an Internet service provider for most user-generated content under other laws, but which specifically excludes intellectual property issues from its scope). Because of its position that Section 512 does not currently cover pre-1972 sound recordings, the Copyright Office saw the extension of Federal law to these recordings as protecting Internet service providers by extending Section 512 protections to any user-generated uses of these recordings. 

The Report even expresses some sympathy for the position taken by copyright holders that the current process for the safe harbor rules should be re-examined as they may be too cumbersome for copyright holders to use.  When copyright holders discover user-generated content that infringes on their rights, they must provide take-down notices to site owners asking that it be removed from the site.  Some copyright holders contend that sites with large amounts of content (like YouTube) and the number of sites hosting such content across the web make the notice and take down process too difficult and time-consuming to provide real protection for copyrighted material.  This is an issue much debated in other circles (see for instance the contentious debate over SOPA) that we'll tackle in a future post.  But it was interesting that the Copyright Office addressed this point in a report having little to do with that debate.

As we said in comments we filed for a client in the matter, the objective of this proceeding was both to protect copyright holders and to make it easier to preserve and disseminate pre-1972 sound recordings.  Does the proposed Federalization accomplish this, or does it provide more disincentive for the use of many of these recordings by webcasters and others who would have to pay performance royalties for content that currently have no such royalties attached?  Content creators prior to 1972 did not have an expectation of a sound recording performance royalty (which wasn't established in the US until 1995), and certainly the adoption of such a right can't (without the use of a time machine) create any financial incentive for the creation of more pre-1972 recordings.  This report is likely to be just one volley set in a series of debates over copyrights that is occurring in Congress and the Courts now, and will likely continue over the coming years as old and new media struggle to adopt to the implications of these increasingly digital media world. 
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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 February 22, 2011 by David Oxenford

Using Music in Digital Media - Business and Legal Issues - A Presentation to the Texas Broadcasters

Public performances, synch and master use licensing, sound recordings, musical compositions - what are all these terms, and how does a digital media company make sense of them and figure out where to go get permission to use music in their business?  These issues were discussed in a webinar that I did with my partner Rob Driscoll from our firm's New York office for the Texas Association of Broadcasters.  The slides for that presentation are available here.  A revised and updated version of our memo on the Basics of Music Licensing in the Digital Media, giving more information on many of the subjects discussed in the presentation, has also just been published, and is available here. 

During the presentation, we talked about the broadcaster's royalty deal with SoundExchange for Internet radio streaming.  Details of that settlement are here.  The performance complement waivers that are associated with that agreement are detailed here.  In the presentation, we also mentioned that stations with websites featuring user-generated content may avail themselves of a safe harbor from liability if they take certain precautions.  Website operators must register with the Copyright Office the name and contact information of a person with responsibility to receive notices from copyright holders that users have posted infringing content, and to take down any content that is in fact infringing.  The Copyright Office instructions for registration can be found here.   These materials may not answer every question, but they may start you asking the right questions as you use music in connection with your digital properties.

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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 August 16, 2010 by David Oxenford

A Guide to the Basics of Internet Streaming and Digital Media Legal Issues - David Oxenford Presentations to the Texas Association of Broadcasters

So you want to start streaming your radio station on the Internet?  Or maybe you want to start a whole new Internet radio station.  In a session at last week's Texas Association of Broadcasters Annual Convention in Austin, Dave Oxenford talked about the legal considerations starting an Internet radio station, while Chris Dusterhoff of Bryan Broadcasting in Bryan/College Station, Texas talked about some of the technical and business issues in doing so.  A copy of Dave's PowerPoint presentation from that session is available here.  The presentation addresses some of the issues that you need to consider, including the music royalties that will be required from most webcasting operations. 

In addition to the issues involved in streaming your signal on the Internet, broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  Issues that arise with service marks and copyrights, with employment issues, social media, privacy and sponsorship disclosure were all addressed in Dave's presentation on the Legal Issues in the Cyber Jungle.  A copy of his PowerPoint presentation is available here.  Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the posts from their audience members, 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.   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. 

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Posted on August 4, 2010 by David Oxenford

Congress Passes Libel Tourism Act - Protects On-Line Media From US Enforcement of Foreign Judgments

Congress last week adopted a bill important to all US media companies that produce content that can be received overseas.  This would include anyone with content on their website (including user generated content) that could potentially give rise to a legal judgment overseas.  As explained in detail in Davis Wright Tremaine's memo on the act - the Securing the Protection of our Enduring and Established Constitutional Heritage Act (“SPEECH Act”) - companies and individuals were bringing lawsuits, many in London, against publications from the United States, finding liability for speech that would be protected by First Amendment principles here.  Other US companies were facing liability for user generated content posted on their website that would be protected under Section 230 of the Communications Decency Act from libel actions in the United States.  This practice was caused "libel tourism", as people would go in search of the country where their case would be strongest - knowing that US law would not sustain their claims.  These cases often resulted in liability even if the US publisher had only minimal distribution in the foreign country where the case was brought.  Before this legislation, when parties were successful in foreign litigation, they could enforce their foreign judgments in US Courts against US citizens or companies, and the US parties would have no defense, as US courts would normally not re-try a final decision from a foreign court.  This legislation gives US Courts, before a foreign judgment involving speech matters can be enforced in the US, the authority to review the judgment to make sure it would have been permissible under US law.  Read the DWT memo, here, for more information about this important legislation. 

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Posted on June 18, 2010 by David Oxenford

DWT's David Oxenford and Rob Driscoll Present Seminar on The Basics of Music Licensing In Digital Media: Issues to Think About When Using Music in the Digital World, Including In Connection With User Generated Content

Davis Wright Tremaine attorneys David Oxenford and Rob Driscoll conducted a seminar -  Using Music in Digital Media: Business and Legal Issues - on June 16, 2010 in New York City.  The seminar was presented to attorneys from committees of the New York State and New York City bar associations.  In the seminar, Dave and Rob discussed the music licensing issues that can arise when music is used in digital media - touching on everything from royalties for the streaming of music by Internet radio stations, to the use of music in video productions or in advertisements that may be displayed online, to the occasional use of music by a business on its website to enhance the "stickiness" of that site.  The PowerPoint presentation from the seminar is available here.  Many of the issues that were covered in the seminar are discussed in Dave and Rob's memo the on The Basics of Using Music in Digital Media, available by clicking on this link.

Another topic that was discussed was the use of music in user-generated content, and how website operators can avoid liability that may arise from the posting on their sites of content using music and other copyrighted materials by users over whom the site owner has no control.  The Digital Millennium Copyright Act provides protection for those who host sites where such content is posted, but certain formalities need to be observed by the site owner to insure that they receive the law's full protection.  Site owners cannot encourage the posting of copyrighted content unless the appropriate clearances have been obtained, they cannot have actual knowledge of the infringing content, they cannot receive a direct financial benefit from the infringement, and they must act promptly to remove infringing content if notified that it is on their site.  To make this notification possible, to provide a "safe harbor" under the DMCA, a website owner needs to place a notice on its website in a "location accessible to the public," and register with the Copyright Office, the name of a person to be contacted by a copyright owner if the owner finds its content being used on the site without permission.  This notice must provide the contact person's address, phone number and email address.  Information about registering the contact person with the Copyright Office, a list of those website operators who have registered, and a link to the form to be used to register a contact person, can be found here.

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Posted on March 22, 2010 by David Oxenford

Digital Media Issues for Broadcasters and FCC Issues Discussed At Oklahoma Association of Broadcasters Convention

Using music on your website, employees on Facebook or twitter, doing podcasts?  Everyone needs a guide to the legal issues that you may face as broadcasters move their content to new platforms.  At the Convention of the Oklahoma Association of Broadcasters, held in Oklahoma City on March 18-19, David Oxenford conducted a seminar on Legal Issues for Broadcasters Operating in a Digital World – dealing with legal issues that broadcasters need to take into account when moving their content and presence beyond their over-the-air signals.  The PowerPoint presentation used in that seminar is available here.  Other issues that were discussed in that session include:

  • Use of music on websites (see our guide to Music Rights for Digital Media Companies here)
  • Domain name issues (see our recent post on new domain names here)
  • FTC guidelines on disclosing consideration given to bloggers and other users of social media sites (see our post on that subject here)
  • Legal issues that arise from the social media (see Davis Wright Tremaine's webcast on the social media, here)
  • Issues in connection with user generated content (see our posts here)

In addition, David conducted a separate seminar on FCC issues facing broadcasters.  A copy of the PowerPoint from that presentation is available here.  Issues discussed in that session included:

  • The FCC's National Broadband Plan and its impact on television broadcasters (see our post here)
  • The proposed broadcast performance royalty (or performance tax, see our post here)
  • The FCC proceeding on the Future of Media (see our posts here and here)
  • The recent Citizens United decision and its impact on political broadcasting rules (see our description of that case here, and our Political Broadcasting Guide, here)
  • A variety of fines imposed on stations for violations of FCC rules - a summary of many of the recent fines can be found here.

 Broadcasters and others interested in the Digital Media should watch our Blog for future developments on all these issues and the many other legal matters of importance to their businesses. 

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Posted on August 30, 2009 by David Oxenford

David Oxenford Speaks on Panel on the Digital Millennium Copyright Act at the Future of Music Coalition Policy Summit

On October 6, 2009, David Oxenford participated in a panel called "Post-Millennium Analysis: The DMCA in the 21st Century" at the Future of Music Coalition's Policy Summit in Washington, DC.  Other panelists included David Carson, General Counsel of the US Copyright Office, and Mitch Glazer, Executive Vice President, Government and Industry Relations for the RIAA.  The panel discussed, among other topics, webcasting royalties and the proposed broadcast performance royalty, and the safe harbor provisions of the DMCA for services which allow the posting of user-generated content.

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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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Posted on April 8, 2008 by David Oxenford

China Adopts New Rules on Streaming Media

While US webcasters may think that they have legal issues - whether it be the Internet radio music royalties that have been such a concern (see our coverage, here) or the copyright and other liability issues that surround user-generated content on various websites (see our story here), they face nothing like new rules that were recently adopted for webcasters in China.  The new rules require government permits from two separate Chinese government agencies before webcasting operations can begin.  In addition, the rules appear to require ownership and control of webcasting operations by state-owned companies.  A memo on these new rules, prepared by attorneys from Davis Wright Tremaine's Shanghai office, can be found here.

These rules apply to streaming audio and video delivered to mobile and wireless devices.  The rules also require yet another permit for sites that contain news content, and require taping of programs (a proposal made by our own FCC in connection with broadcast programs to monitor for indecency) to monitor for program content that may offend government requirements.  Clearly, it's a different system than that in place in the US - one which website operators interested in an operation in China should study carefully.  Again, details can be found in the memo prepared by the attorneys in our Shanghai office.

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Posted on October 7, 2007 by David Oxenford

Avoiding Liability for Websites that Post User Generated Content

Website operators planning to allow visitors to post their own "user generated content" can, for the most part, take solace that they will not be held liable for third-party posts if they meet certain criteria.  The Communications Decency Act provides protection against liability for torts (including libel, slander and other forms of defamation) for website operators for third-party content posted on their site.  The Digital Millennium Copyright Act provides protection against copyright infringement claims for the user-generated content, if the site owner observes certain "safe harbor" provisions set out by the law.  The requirements for protection under these statutes, and other cautions for website operators, are set out in detail in our firm's First Amendment Law Letter, which can be found here.

 As detailed in the Law Letter, the Communications Decency Act has been very broadly applied to protect the operator of a website from liability for the content of the postings of third parties.  Only recently have courts begun to chip away at those protections, finding liability in cases where it appeared that the website operator in effect asked for the offending content - as in a case where the owner of a roommate-finder site gave users a questionnaire that specifically prompted them to indicate a racial preference for a roommate - something which offends the Fair Housing Act.  However, as set forth in the Law Letter, absent such a specific prompt for offending information, the protections afforded by this statute still appear quite broad.

The protections against Copyright infringement liability contained in the Digital Millennium Copyright Act actually impose very specific obligations on the site operator before it qualifies for the safe harbor immunity.   The site owner must register with the Copyright Office, provide the name of a specific person on staff to receive complaints of copyright violations (and keep that name up to date), adopt terms of use for its site that deals with how the site will deal with repeat infringers, have no actual knowledge of infringement and promptly remove offending material if properly notified by a copyright holder that it has been posted on the site ("the notice and take-down" provision).  As with the Communications Decency Act, the website operator should also do nothing to encourage the posting of infringing material.

Details of these requirements can be found in the Law Letter, and should be reviewed by website operators contemplating the posting of user generated content.  These statutes make possible sites that allow users to post material, but require the site owners to observe the formalities that are set out in the statutes, and to avoid encouraging the posting of infringing material.  So build your site and feature third party content, but do so carefully.
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