Those of you outside the DC area (and perhaps those in the area that didn’t read today’s Business Section of the Washington Post) might be interested in an article that addresses a topic of concern to many website operators: the possibility of being sued for copyright infringement based on material that others have posted you your site.
While the specific article discusses a lawsuit relating to the unauthorized use of the Prince song "Let’s Go Crazy" in a YouTube clip of a baby dancing to the song that was posted by the baby’s mother, there are broader lessons to be learned.
Universal Music Publishing Group ("Universal") took advantage of a provision the Digital Millennium Copyright Act ("DMCA") to require YouTube to remove the 29 second clip from its website. Specifically, Universal invoked Section 512 of the DMCA, a provision that favors removal of allegedly infringing material posted by a third party by offering a safe harbor to any website that has a Designated Agent for receipt of a "takedown notice" of a possible infringement and timely complies with such a request. The twist in this instance is not that Universal sent a takedown notice to YouTube — YouTube gets hundreds of these notices a day and just this week announced that it has created new filtering software to assist it in proactively identifying potentially infringing uploads — but rather that the woman who originally posted the material has sued Universal for its attempts to bully her into submission.
The story offers a reminder to television and radio stations — or any website operator — who allow members of the community to participate in discussions and even upload audiovisual materials of their own that they should put on the website contact information for a "Designated Agent" to whom DMCA takedown notices can be sent.
We’ll be addressing this topic in more detail in an upcoming issue of "Memo to Clients". However, we think this is a perfect time to point out that the official designation of an Agent takes minutes and acts as a buffer against significant legal headaches later on. We have previously discussed the immunity offered by another federal statute, Section 230 of the Communications Decency Act, for the postings of third parties on your website. But violations of intellectual property laws, including copyright laws, stand as a major exception to the immunity provision. Instead, timely response to a takedown notice complies with the safe harbor provisions of the DMCA. Thus, no contact person to receive and respond to the takedown notice = no immunity. Readers of the Washington Post story will notice that there is clearly no question that YouTube is not in legal jeopardy.
Again, we’ll have more on this in Memo to Clients in the near future. You can always contact an FHH attorney if you want to discuss this now.