Startup and video game law, from a Canadian and U.S. perspective
Using the DMCA to Limit Liability for 3rd Party Copyright Infringement
Worried about lawsuits resulting from 3rd parties infringing copyright through your website or application? The US Digital Millennium Copyright Act (“DMCA“) may be a solution! The DMCA contains a safe harbour that protects online service providers from liability for copyright infringement committed by 3rd parties on/through the service. At the outset, you should already qualify as a service provider as it is any businesses that operates a website or other Internet services (mobile applications, games connected to the Internet etc.) or facilities.
In order to take advance of the DMCA, your company will need to comply with a number of simple steps (in part):
1. Designate a Copyright Agent to receive DMCA notices with the US Copyright Office;
2. Post the Copyright Agent’s contact information on your website;
3. Adopt, implement and communicate to users a policy to prevent/terminate repeat infringers; and
4. Quickly respond to DMCA notices.
In addition to meeting a number of additional elements that are not covered in this post.
The focus of this post is on the Copyright Agent. Frequently, companies are denied the above DMCA safe harbour simply because they have not complied with the Copyright Agent terms, a shocking result especially as compliance is relatively simple.
The first requirement is to appoint the agent. This is done by filling out a form (http://copyright.gov/onlinesp/agent.pdf) that designates the agent and by sending it, along with payment, to the US Copyright Office. The agent’s role is to respond to DMCA notices and, as such, needs to be a person within the company that understands the DMCA notice process or the company’s legal counsel. Typically, the company’s legal counsel acts as the Copyright Agent barring sufficient internal DMCA expertise.
The second requirement is to post the agent’s information on your website. Again, another simple step. Usually the agent’s contact information is placed in the Terms of Service Agreement governing your website in a separate section concerning the DMCA, the copyright agent and the DMCA notice process.
If you are a U.S. company, check to see if you are in compliance with the DMCA so that you may take advance of the safe harbour described above. Additionally, for certain Canadian companies, it may be a prudent business decision to comply with the DMCA (check with your legal counsel).