Safe Harbor Provision - Important Requirements You Need to Know About

It's becoming more and more commonplace for small business owners to reach out to online users with a company blog. This can be a great way of interacting with your client base and target market, not to mention generating organic traffic through good SEO practices. However, there are very real copyright infringement issues that you need to be aware of. I'm not talking about stealing content for your blog - that's a no-brainer, and strictly illegal. I'm talking about users' comments. What if someone completely unaffiliated with your company posts a comment containing copyrighted information? Which party is legally liable? If you haven't taken steps to ensure that you're protected by the Safe Harbor Provision of the Digital Millennium Copyright Act (DMCA), you are.

What It Is

In 1998, in an effort to get legislation caught up with the steady increase of new technologies, the United States modified Title 17 of the US Code (the Title dealing with copyright law) to include the Digital Millennium Copyright Act. One section of the DMCA, Title II, is called the Online Copyright Infringement Liability Act -- more commonly known as the Safe Harbor Provision. This Provision essentially limits an online service provider's liability for infringement caused by users.

The premise of the Safe Harbor Act is that it's going to be difficult -- if not impossible -- for a company to screen every single comment for copyright infringement. And even if you are able to pore through every comment, it's unreasonable to expect you to be able to determine what is and isn't copyrighted.

How It Works

Of course, as with everything, there's a catch: you as an online service provider have to follow the exact requirements to the letter in order to be protected by the Safe Harbor Act. The only way to access the safety of this particular harbor is to adhere to specific requirements. A general "Email our webmaster if you find that this website infringes on your copyright" might dissuade someone from suing you -- but if they choose to do so, you're legally no more protected from the wrath of the courts than anyone else.

The goal of the requirements isn't to make things difficult on you -- it's to establish a clear procedure for addressing infringement. And the requirements are, in fact, not difficult at all.

What To Do

In order to be compliant with the requirements of the Safe Harbor Act, specific information needs to be available to the public -- both on your website, and on the US Copyright Office's website. In both places, the following information should be available:

• The legal name of your business
• Any assumed or alternate name of your business, if applicable
• The name and physical address of the contact person at your business (no PO boxes allowed)
• Email address and phone number of the contact person

As the online service provider, it's your responsibility to make it at easy as possible for someone to contact you about possible infringement issues. The only hitch: it costs you nothing to add the appropriate information to your own website, but you'll need to send the US Copyright Office a check in order for them to put your information on theirs.

What Happens Next

If one of your website users posts infringing content and the copyright owner comes across it, and if you've taken the proper precautions, you can expect something along these lines:

• Your contact person will receive a letter listing the location of the infringing material (i.e. your website), the name of the infringing material, and a statement to the effect that their work is being used improperly, among other information.
• You will take the allegedly infringing material down, and you will notify the user who posted it.
• You will wait. If the user disagrees with the removal of the material, he or she will be able to submit a counter-notice to you, claiming that the removal was not proper because their use was not infringement.
• If you receive such a counter-notice, you'll notify the person claiming to be the copyright holder that your user does not agree with their claims.
• If the person claiming to be the copyright holder does not take legal action against the alleged infringer within 14 days, you are free to re-post the material.

If, on the other hand, you have not taken the proper precautions:

• You will be sued for copyright infringement and, if charged, fined accordingly.

Given your options, don't you think it's worth your time to make sure you're complying with the requirements of the Safe Harbor Provision?