How liable are you for copyrighted material on your website?

(Editor’s note: Curtis Smolar is a partner at Ropers Majeski Kohn & Bentley. He submitted this column to VentureBeat.)

A reader asks: Users are posting music and other copyrighted material on my website, despite my best efforts. Am I liable for copyright infringement because of their postings?

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Answer: In general, you can be held liable directly in two ways. Of course, if your website directly infringes upon a copyrighted work (such as posting a copyrighted picture), you’re liable. Alternatively, you can also be on the hook for the infringing actions of another person – even if you were not directly responsible for the action.  This is called vicarious liability.

The good news, though, is that in the United States, the law often protects innocent infringers from liability.

In 2000, Congress enacted the Digital Millennium Copyright Act (“DMCA”) in order to balance the rights of copyright holders with the rights of Internet service providers.  The DMCA, at its core, protects companies from liability by means of a safe harbor provision that protects companies if they meet the following requirements:

• They must comply with standard technical measures and remove repeat infringers.
• They cannot receive any financial benefit that’s directly attributable to the infringing activity.
• They can’t be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent.
• Once they receive notice from copyright owners or their agents, they must quickly act to remove the material.

Generally, those first three provisions go to how much control you are exerting over the copyrighted material.  If you are directly benefitting, aware, and/or enabling the infringement, then the safe harbor provision probably does not apply to your company’s website.

There are complex notices and take down provisions in the safe harbor rules, which require that the copyright owner be diligent in protecting its property.  But if that owner is, your site may be required to take down the offending content or face liability under the DMCA.

For most Web companies, the most important provision is the fourth – the need to take down content quickly.  This is called the Take Down Requirement and it means that a website that receives a notice regarding offending content must act immediately to remove it.  Failure to do so do  may expose the company to liability    .

Overall the DMCA creates a structure in which an innocent infringing website can avoid unjust liability.  Without this, it would almost impossible for Web 2.0 companies to operate, given the ever-increasing amount of user generated content that contains potentially infringing material.  If a website were held liable for each innocent posting of copyrighted material by users, it could well mean the end of the Web’s vibrant interchange of ideas.

Startup owners: Got a legal question about your business? Submit it in the comments below or email the author directly. It could end up in an upcoming “Ask the Attorney” column.

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Disclaimer: This “Ask the Attorney” post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  VentureBeat, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.

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