Your True Intent Matters When Preserving Your DMCA Safe Harbor Protection
For those of us operating in the United States, the Digital Millennium Copyright Act (DMCA) provides us with safe harbor from liability due to copyright infringing activities of our members on the communities that we manage. This is a great thing and to earn that privilege, you must adhere to certain standards.
One of the big ones is that when a purported copyright holder files a properly formatted DMCA notice with you, you must remove the material cited. Unfortunately, what some community managers do is hide behind this and claim ignorance until the moment that they are notified by the copyright holder. Even if they know no one should be distributing “Batman” or “Ghostbusters” or an obviously copyrighted work in their community.
Even though they know they shouldn’t have it, they hide behind the law and claim ignorance. They happily accept the traffic and cash the checks that come as a result of the traffic. But what they may not realize is that their true intent does matter and could potentially put them and their community in jeopardy, due to their own poor judgment.
Another part of maintaining safe harbor is having your hands clean and ensuring that you don’t have knowledge of infringement. Even if you claim you don’t have knowledge, if it is clearly apparent to any reasonable person that infringing activity is happening, you may fail what is called the “red flag” test.
I am just glossing over these issues and I am not an attorney, so please don’t take any of this as legal advice.
My friend Jonathan Bailey recently wrote about two different cases that tested DMCA safe harbor protections, one where the protection was affirmed and one where it was defeated. He discussed the differences between the two cases.
What it boils down to is true intent. One service (Veoh) was found to be operating honestly and one (IsoHunt) wasn’t. The one that wasn’t was found to be inducing copyright infringement – or encouraging it with the “manifested intent that the service actually be used in that manner.” In addition, it was found that the owner of IsoHunt had “red flag” knowledge where he knew of infringing activity and, without a notice, simply chose not to act.
“The biggest factor seems to be in the actions of the people who ran the respective sites,” Jonathan said, emphasis mine. “Veoh did nothing to induce infringement other than offer a site for users to upload videos. IsoHunt, on the other hand, actively encouraged uploads of top movies, aided users with copyright infringement in its forums and took direct steps to ensure that his site would be used for the purpose of infringement.”
“In short, the court has tried to make it clear between these two decisions that it wants to make sure legitimate sites have a broad amount of protection under the DMCA but that those who act with bad faith have none,” he continues. View his full article for more information and helpful analysis.
If your intent, on your community, is to respect copyright holders and their works, and you are proactive in your approach, you will be going a long way toward ensuring your protection under this act. But if you try to hide behind it and twist it into something that permits you to act ignorant, you will be taking a risk.
