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Law & Policy: Do You Understand Online Copyright Law?

August 20, 2012

The ability to cut and paste is all people need to violate copyright law. A graph on home sales cut from an online newspaper pasted into a member’s blog post—potential copyright violation. A photo of an elementary school cut from the town’s Web site and pasted into an MLS listing—potential copyright violation.

Managing the risk of operating Web sites that allow third parties to display content requires not only sound business skills but also knowledge of the special laws that govern the application of liability to the operators of such sites.

There are two laws at the federal level (in addition to your state laws), one related to liability for defamation (the Communications Decency Act or CDA) and one concerning liability for copyright infringement (the Digital Millennium Copyright Act or DMCA). Here we address how the latter affects your association and MLS Web site practices.

How to avoid liability

The DMCA allows the Web site operator to avoid liability for copyright infringements created by others who post content to the site. For example, association sites that offer blogs or other social media platforms on which members and others can contribute content can avoid liability for anything posted by visitors. Likewise, in the case of multiple listing service sites, the MLS operating the site can avoid copyright liability for photos provided by participants and subscribers.

Consider, for example, this scenario: A listing includes a photograph of community features (shopping mall, schools, etc.) near the property being offered for sale. The multiple listing service doesn’t know that the photos were not taken by the participant but instead were found on the Internet. A photographer then contacts the multiple listing service claiming ownership of the photographs and demands payment.

Qualifying for safe harbor

Unlike the CDA, which provides its protection based upon the role of the site operator as a passive Web site host who played no role in selecting the content, the DMCA is a safe harbor that requires the site meet certain conditions to receive the benefit of its protection.

There are five requirements to qualify for this safe harbor. The site operator (i) does not have actual knowledge of the infringing content; (ii) is not aware of facts or circumstances from which infringement is apparent; (iii) does not receive a financial benefit directly attributable to the infringing activity; (iv) acts expeditiously to remove the infringing content when notified; and (v) has provided a means for receiving notice of the infringing content.

If these conditions are met, the DMCA allows the Web site operators to avoid liability for copyright infringements when someone else has posted content to their site.

Don’t forget this essential step

The fifth requirement is the critical step not to overlook. Although your Web site may provide a means of contacting you, the operator, that is not sufficient to achieve the safe harbor protection. The DMCA requires that the site operator register the designated agent who is to receive notice from copyright owners of any alleged infringement. In a sort of “believe it or not” situation, the only way to actually register this designated agent for the Web site is to file a paper form that has to be mailed (not e-mailed) to the U.S. Copyright Office along with the required fee.

The information is then manually entered into a list maintained by the Copyright Office. Late last year the Copyright Office finally requested comment on a new rule that would convert to an electronic system to submit this information, but that system is not yet in place. Instructions for identifying a designated agent and a list of designated agents are found on the Copyright Office Web site.

In addition to registering your designated agent, site operators will typically include the information on their designated agent in either the site’s terms of use or in a special section on copyright or legal terms. On the national association’s site, for example, the information is found in the terms of use, along with the information the claimant should provide when identifying the allegedly infringing content.

Sometimes avoiding the entanglements that can arise from litigation, even well-founded litigation, can be as simple as knowing your rights under the law. So here is another case of “what you don’t know can hurt you.”