A Plea to Interactive Websites: Check Your Copyright Agent Designations or Prepare to Face Liability for Your Users' Content

On June 30, 2015, a New York court provided a good excuse for anyone with an interactive website to double-check that its copyright agent designations with the U.S. Copyright Office are complete and accurate. Don’t know what this means? Keep reading.

Copyright infringement is a strict liability tort. A person can be liable without knowing that his or her actions violate a copyright owner’s rights. In the dawn of the Internet, some courts held that websites could be strictly liable for the copyright infringement of their users. The Digital Millennium Copyright Act (“DMCA”) sought to change this by affording online service providers (e.g., websites) with a safe harbor from contributory copyright infringement. However, the safe harbor is only available when online service providers complete a series of specific formalities.

Most websites that allow users to post content (including reviews, comments, photos, videos and other materials) are eligible for a defense against claims of copyright infringement for the user-posted content. See 17 U.S.C. § 512(c). To take advantage of the safe harbor, the website operator must (1) register an agent with the Copyright Office to receive notices of copyright infringement; (2) provide contact information for the agent on its website; and (3) upon receipt of a proper DMCA notice promptly remove content that is allegedly infringing.

In BWP Media USA Inc. v. Hollywood Fan Sites LLC, No. 14-CV-121 (JPO) (S.D.N.Y. June 30, 2015), the defendants operated various celebrity gossip websites. They had not properly designated a copyright agent with the Copyright Office before the alleged infringement began. The plaintiff owned copyrights to various photos that were posted by users of the defendants’ websites without authorization. The website operators tried to claim safe harbor immunity because their websites identified an agent to receive copyright claims and outlined the DMCA process. However, one defendant had not registered an agent with the Copyright Office until 18 months after the infringement began. Another defendant only identified an agent for the parent company and not for its subsidiaries and affiliates (which actually operated the website), as the Copyright Office form requires.

The court concluded that the website operators could be liable for contributory copyright infringement for the photos that were posted by users before the websites properly registered an agent with the Copyright Office. The fact that the websites tried to comply with the law by identifying an agent on their website and registering the parent company with the Copyright Office was not enough.

The DMCA safe harbor provides a powerful shield if it is properly used. Check here to see whether your company’s agent designation is complete and accurate.

If you have questions about the content of this alert, please contact your Stoel Rives attorney.