Digital Millennium Copyright Act Safe Harbor

I am frequently asked
when website operators need to be concerned
about the Digital Millennium Copyright Act, especially the Safe Harbor provision of the DMCA, and what they need to do
to comply with it.

The DMCA, passed in the U.S. in 1998, exempts on-line service providers
(in most situations, website operators), that meet the criteria set forth in the safe harbor provisions from
claims of copyright infringement made against them that result from the
conduct of their customers. These safe harbor provisions are designed
to shelter service providers from the infringing activities of their
customers. If a service provider qualifies for the safe harbor
exemption, only the individual infringing customer are liable for
monetary damages; the service provider`s network through which they
engaged in the alleged activities is not liable.
In order to have an allegedly infringing web site removed from a
service provider`s network, or to have access to an allegedly
infringing website disabled, the copyright owner must provide notice to
the service provider with the following information:

* The name, address, and electronic signature of the complaining party
* The infringing materials and their Internet location, or if the
service provider is an "information location tool" such as a search
engine, the reference or link to the infringing materials.
* Sufficient information to identify the copyrighted works.
* A statement by the owner that it has a good faith belief that there
is no legal basis for the use of the materials complained of.
* A statement of the accuracy of the notice and, under penalty of
perjury, that the complaining party is authorized to act on the behalf
of the owner.

In addition to informing its customers of its policies (discussed
above), a service provider must follow the proper notice and takedown
procedures and also meet several other requirements in order to qualify
for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of
infringement, ISPs which allow users to store information on their
networks, such as a web hosting service, must designate an agent that
will receive the notices from copyright owners that its network
contains material which infringes their intellectual property rights.
The service provider must then notify the Copyright Office of the
agent`s name and address and make that information publicly available
on its web site.

Finally, the service provider must not have knowledge that the material
or activity is infringing or of the fact that the infringing material
exists on its network. If it does discover such material before being
contacted by the copyright owners, it is instructed to remove, or
disable access to, the material itself. The service provider must not
gain any financial benefit that is attributable to the infringing
material.

Good luck, and be careful out there!