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How to Protect Yourself from Your Website

Most of us know about copyright infringement because of the warning message that is played on home movie rentals prior to playing the movie.  You know, the blue screen with the eagle at the top and the warning about fines for copyright infringement being in the hundreds of thousands along with the threat of going to jail.  It’s the screen that you can’t fast-forward.  Did you also know that these same fines and criminal liability might apply to your website?  Did you know that you might still infringe even if you unknowingly posted infringing content?

As the owner and operator of a website, you can be held responsible for any copyright infringement that may occur on the site, even if it was done unknowingly and not offered for sale.  This includes content that you or your developer loads to your website (e.g., images, text, videos, audio, etc.) as well as content that others might post to your website (e.g., message boards, chat rooms, user created web pages, testimonials, etc.).

So, how can you protect yourself from your website?  The most important consideration is to register a Digital Millennium Copyright Act (DMCA) Agent with the US Copyright Office. Without such protection, even if you are completely unaware of the copyright infringement that has occurred, you can be held legally responsible for violating US copyright laws.

US Copyright Law

Current statutes give the owners of copyrights the exclusive right to display and distribute the copyrighted work.  Thus, anyone else who uses the work or publishes it (for example on your website) is guilty of copyright infringement.  While the law does draw a distinction between innocent infringement and willful infringement, ignorance of violating copyright law is not a defense.  So, if something that is copyright protected is posted on your website without your knowledge, you can still be targeted for a potential lawsuit.  In order to avoid having to pay damages and facing other legal consequences, an online business should conduct due diligence on the content that it creates for website as well as try to deter their users from posting copyright protected material on the website.

Website Terms of Use/User’s Agreement

Before users can access your website, they should be required to read your “Terms of Use” and agree that they will not upload copyright protected content as well as other content that you might want to limit (e.g., content that might violate the privacy of another).  In your Terms of Use, you should caution users against copyright infringement by posting the potential consequences of fines and imprisonment that they could face for committing this felony.  While this agreement does not legally protect the website owner or user from judicial consequences, it can be helpful in deterring users from posting copyrighted work in the first place.  But, even with this precaution, you as the owner/operator of a website are still responsible for monitoring what is posted there.  For many online sites, the number of users and influx of user-posted content makes it near impossible to monitor everything that is being uploaded.  For this reason, it is important to utilize the protection that you are given under the Digital Millennium Copyright Act (DMCA)of 1998.

Digital Millennium Copyright Act (DMCA)

The DMCA, in Title 17, United States Code, Section 512(c)(1), provides protection for website owners.  Utilizing the protection offered by this statute helps protect you from liability for copyright infringement that may unintentionally occur on your site.  The DMCA states that “a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”  Under this law, if a website owner removes copyright protected content after being notified of the violation, then he or she will not be held liable for that violation.  This protection does not apply if the infringement was occurring with your knowledge or providing you with financial benefit (e.g., sale for media or application download).  In addition, website owners are not automatically protected by the DMCA.  That is, it is your responsibility to take certain actions. 

Digital Millennium Copyright Act (DMCA) Agent

To be protected, a business owner must register with the US Copyright Office and have a designated agent who will receive notifications when copyright infringement has occurred on your site.  In order to do this you must fill out paperwork and pay a fee to designate your DMCA Agent.  An exemplary form may be accessed on the US Copyright Office site by visiting  Designating your DMCA Agent to protect your website is well worth it.

In addition, you must post a note to the public on your website that displays the information from the US Copyright Office in the notice.  Usually, this note is found in the Terms of Use that were earlier described and includes instructions for how to contact your DMCA Agent.

Responding to Claims

Once you have taken the above steps, you are likely protected from liability when a claim of copyright infringement is sent your way, so long as you follow the procedures laid out in the DMCA.  That is, if you receive a notice of claimed infringement, then you have a duty to expeditiously investigate whether the alleged content violates any copyright.  If there is a potential of copyright infringement, then you must remove or disable access to the material on your website in a timely manner, and notify the user who uploaded it that it has been removed.  Fortunately for you as the operator of the website, the DMCA gives you the right to remove or disable potentially infringed material that others have posted without facing legal action from the user who posted it.

Utilizing the protection provided by the DMCA through the use of a DMCA Agent is an important an easy way for you to protect yourself from your own website.  To make sure that you have taken the proper action to afford yourself protection, you should contact a qualified attorney to further advise you on registering your DMCA Agent.

Bambi Faivre Walters, Esq. is a registered USPTO patent attorney who practices intellectual property law in Williamsburg, VA.  She serves on national and local nonprofit organizations that work with innovative businesses, inventors, artists, and writers including the United Inventors Association, the Native American Inventors Association, and the Virginia Inventors Forum.  She will gladly answer questions directed to or by calling 888-388-9614.

Last Modified: April 4th, 2010