The internet has been a boon for businesses, allowing them to engage with customers and cement brand loyalty in ways that could never have been envisioned 20 years ago. But those seemingly immeasurable benefits also present significant risks, among them the possible unwitting violation of others’ intellectual property rights.
To better illustrate this, let’s use a recent example. Expert Dog Groomers (EDG) competes in the highly competitive pet grooming marketplace. The company created a website advertising its services, with pictures of groomed pets with assorted bows and scarves. A mobile version of that website was created for those potential customers to access using their handheld device and make appointments to groom their furry family members.
So far, so good.
As the competition in the market increased, EDG’s key employee, Maria Marketer, developed and implemented an online forum on the website, allowing customers to discuss the company’s services, post pictures of their pets, and share their experiences. Building content and assessing user satisfaction were her goals to increase customer growth.
A Subpoena Arrives
One day, EDG received a subpoena from Colin Copyright Holder, asking the company to reveal the identity of “Igor7” a user who posted in the online forum. Included in the subpoena was a request to “take down” Igor7’s posting of images that Colin claims are his copyrighted material.
What does EDG do with the subpoena?
Can EDG be sued for copyright infringement for the appearance of Colin’s images on its hosted online forum?
Fortunately, EDG consulted their attorney before setting up the website and again before implementing the online forum, so their site was in compliance with the Digital Millennium Copyright Act (DMCA) (18 U.S.C. § 512).
Digital Millennium Copyright Act
The DMCA provides certain copyright infringement protections (safe harbor) from actions by others who use certain internet systems. The DMCA also provides a vehicle for copyright holders to protect their interests with the cooperation of those who operate those internet systems that comply with the DMCA.
EDG met the DMCA definition of an online service provider, or OSP. Their company, with the aid of their counsel, took steps in designing their website to accommodate and not interfere with technical measures of copyright holders to identify and protect their copyrighted material. EDG also adopted and implemented a repeat offender policy and made sure the website users were informed of the policy by requiring them to agree with the site’s terms of service before allowing them to post on the forum.
Repeat Offender Policy
The repeat offender policy included a system for copyright holders to report the alleged infringement. In this instance, EDG implemented a dedicated mailbox, which they routinely monitored, where Colin gave notice and attached his subpoena. EDG also had a system in place for addressing alleged infringements reported in compliant DMCA notices.
Finally, EDG designated an agent and registered that agent with the Copyright Office. The policy, drafted with the aid of EDG’s attorney, provides a process where Maria, or someone from her team, responded to the subpoena and took down the allegedly infringing image. It should be noted that EDG checked with counsel before responding to Colin (something they didn’t hesitate to do because they had negotiated a flat fee with their attorney that included ongoing advice about future DMCA notices).
Because EDG took its attorneys’ advice and complied with the DMCA, EDG is entitled to one of the four safe harbor provisions of the DMCA and could be shielded from copyright infringement liability. To be entitled to the safe harbor, EDG would have to show that it lacked actual knowledge that the material was infringing, did not receive a direct financial benefit from the activity, and responded expeditiously to remove or take down the material upon receipt of a DMCA take-down notice.
Significant Benefits, Significant Risks
The internet has obviously been a boon for businesses, allowing them to engage with customers and cement brand loyalty in ways that could never have been envisioned 20 years ago. But with those seemingly immeasurable benefits come significant risks, among them the possible unwitting violation of others’ intellectual property rights.
EDG proceeded wisely and cautiously when setting up its website and online forum and, because of their prudence, avoided a potential legal headache that could have endangered their business.
This update is for informational purposes only and should not be considered legal advice. Each situation is different, could change any time, and should be analyzed by an attorney.