Companies who permit third parties to post content on their websites, blogs and chat rooms are granted limited immunity for suits by copyright owners if those companies provide a DMCA agent to receive notice of copyright infringement. The 1998 Digital Millennium Copyright Act (DMCA) www.copyright.gov/legislation/dmca.pdf effectively classifies all companies who maintain websites, blogs or chat rooms as “online service providers” with respect to third parties who post or upload content to the website or blog. Although many companies do not consider themselves “online service providers,” the DMCA broadly defines the term to include any entity that permits third parties to post content if that entity controls the website.
The policy behind the law is a recognition that many people think copying content and posting the same on various Internet sites is NOT a violation of copyright. In fact, any unauthorized copying, distributing (as in posting) and making modifications (derivative works) IS A VIOLATION of the copyright owner’s rights. To protect large online service providers such as YouTube, FaceBook and MySpace, the DMCA broadly defines an online service provider (OSP) and permits the OSP to list a DMCA agent to accept takedown notices from copyright owners. If the OSP removes the accused content in reasonable time, the service provider is not usually liable for copyright infringement.
The two key features to obtain this limited immunity are (a) listing the DMCA Agent, address and method of communicating the notice on the website’s Terms of Service (TOS) or Terms of Use (TOU); and/or (b) registering the DMCA Agent with the Copyright Office www.copyright.gov.
The Copyright Office explains this aspect of the DMCA in its “Service Provider Designation of Agent to Receive Notification of Claims of Infringement” (available here). The best practice is to spend $105.00 and register the DMCA Agent with the Copyright Office by completing and filing the DMCA Agent Form (available here) with the Office by mailing it to
Copyright RRP
P.O. Box 71537
Washington, DC 20024
Although OSPs or website owners who do not list a DMCA Takedown Agent have other defenses (such as they cannot police all third party content posted on the site), the better practice is to list the DMCA agent in the TOS and the register the Agent with the Copyright Office.
Lastly, a critical analysis of this blog posting on ComplexIP.com may suggest to the reader that the author has infringed the government’s copyright by reproducing in pdf form the “Service Provider Designation.” However, the Copyright Act explicitly states that works created by the federal government are not protected by copyright. U.S. Government works are covered by 17 U.S.C. § 105 which provides that “Copyright protection … is not available for any work of the United States Government, but the United States is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” Exceptions are made for the National Institute for Standards and Technology (NIST) and the U.S. Postal Service. When a copyrighted work is transferred to the U.S. Government, the Government becomes the copyright owner and the work retains its copyright protection.
