Should You Appoint a DMCA Agent for Your Site?

Freelance writers don’t just write for their clients. Most have sites of their own where they both post for themselves and, due to the increasing interactivity of websites in general, accept comments, postings and other material from users.

However, this creates a new legal problem for freelance writers, namely what happens when their users violate copyright law.

It might seem odd to be held accountable, even in part, for infringement that your users undertake without your permission or even knowledge, but the law does allow for that to happen in certain circumstances.

To make matters worse, certain copyright holders have been very aggressive in filing such lawsuits. Most recently Righthaven, the company that has filed dozens of lawsuits over republication of content from the Las Vegas Review-Journal.

So, if you allow users to post content on your site, it’s worth taking a moment to understand what your rights and obligations are and, most importantly, how to protect yourself from legal trouble.

So here’s a basic primer on your responsibility as a webmaster and what you can do to ensure that trouble doesn’t wind up at your door.

Background on the Law

Prior to 1998, there was a great deal of debate and discussion as to how the law would affect hosts and others who accepted content at the direction of users.

On one hand, it seemed pretty clear they could have secondary liability for the infringement, meaning they contributed to it and thus were partly responsible for it. On the other hand, it seemed to create an unfair burden on such sites and was especially dangerous to early free hosting services such as Geocities and Angelfire.

So Congress, under the Clinton administration and spurred by the WIPO treaty of 1996, passed the Digital Millennium Copyright Act of 1998. It was an attempt to update copyright law for the digital age and includes several changes, many of which have become very controversial.

One of those changes was to provide what was known as “safe harbor” for web hosting firms and others that host content at the direction of users. This meant that such services would not be held liable in any way for such infringement.

However, hosts did have to take several steps in order to earn that safe harbor including:.

1. Working to “expeditiously” remove or disable access to infringing material when appropriately notified.
2. Appointing a person to act as a contact for such copyright complaints and posting their information both on their site and registering them with the U.S. Copyright Office.

The first step has rarely been a problem, most sites are more than willing to remove infringing material when notified, but the second has always been more dubious. Few have appointed anyone specific to receive these claims and, most of those that have, have failed to register that person with the Copyright Office.

The result, millions of sites may be exposed to liability for infringement that their owners didn’t even commit.

Should You Register?

If your site accepts user submissions, whether via comments, forums or even allowing users to post directly, you are already in the crosshairs of this law.

However, just because liability is theoretically possible does not mean that it is likely or practical. A lot of it depends on how users post to your site, what they post and how quickly you respond to it.

Consider the following questions:

1. What do your users post and how likely is it to be copyright infringement? If your users post solely short comments to your site, the answer is “not very likely”. However, if you operate a forum where users post longer-form works, especially content that may be plagiarized, the answer changes.
2. How often do users post? If your community isn’t very active, maybe only a few posts per day, you can probably keep track of what is posted and be more proactive in removing such materials. If it is more active and you can’t do any kind of monitoring, your risk goes up.
3. How likely is a lawsuit? If the content is ripped from other freelancers who would more likely just want the content removed, a lawsuit isn’t likely. But if it comes from media companies, newspapers or anyone else with a greater motivation to file a suit, things could be different.

In short, not every site has a high level of risk in this area. Blogs, especially those with a low amount of comments, have almost no risk. Sites with forums, however, certainly increase the risk and those that allow media uploads, especially video, have the highest risk.

While the law gives everyone protection easily and registering a DMCA agent may give you peace of mind, sites with low risks probably won’t gain much from such a registration. Those with higher risks, however, would be foolish not to.

How to Register a DMCA Agent

If you decide that you want to register a DMCA agent for your site, doing so is fairly simple.

First, you need to appoint someone, most likely yourself, to be the agent for receiving complaints of copyright infringement. You need to post relevant contact information for that person on your site, email being the most important but fax and postal addresses also a good idea if practical.

This is a good step to do even if you are not registering with the USCO as it still offers some protection. Any copyright holder who finds infringement on your site will likely search there first for the contact information and look at the Copyright Office site second. Nearly all, upon finding the info, will attempt to contact you there rather than simply filing a “gotcha” lawsuit over a technicality.

However, if you want to ensure you complete all of the requirements under the law, you then must register with the U.S. Copyright Office.

The process, fortunately, is very simple if somewhat expensive.

1. Download this form and fill it out, being certain to look at other registrations if you have questions as to what goes in every space.
2. Sign the form and mail it with a check or money order for the correct amount. As of 11/26/10 that amount is $105 for the registration plus $30 for every ten additional names you wish to file under.
3. Wait several months for your registration to appear. It will show up on the site as a scanned PDF file, meaning that none of the information will be in cleartext on the Web.

The process takes only a few minutes, the biggest pain being the hefty filing fee, and can be done by anyone with the authority to designate such an agent.

Bottom Line

In the end, does every site need to do this? Probably not. If there is a high risk of user infringement and you fear that a lack of a registration might be used against you in court, it’s probably wise.

However, most blogs simply don’t get enough comments or the right kind of comments to really make this a worry. Still, if you have a forum or accept user submissions to your site, it may be worth filing to be on the safe side.

Just bear in mind that this only protects you against infringement by your users, not infringement you do yourself, and it only protects you if you remove content when appropriately notified.

This is not a magic shield against being sued for copyright infringement, but rather, it is a shield against a certain kind of liability and only if other steps are taken.

Still, depending on your site, it can be a life saver and remove a potential legal threat that could have endangered everything you’ve worked for.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.