Can My Website Get Me In Trouble?
John S. Burton
The short answer is yes, if your site permits users to post content on the site.
If a user posts content on your site that belongs to someone else, as an on-line service provider, you could be subject to a claim of copyright infringement.
Fortunately, the Digital Millennium Copyright Act (DMCA), a 1998 U.S. federal law, provides immunity from liability to on-line service providers who follow the requirements of the Act. The DMCA is powerful protection for on-line service providers located in the U.S.
To qualify, you must have a Designated Agent registered with the U.S. Copyright Office to receive notification of a claimed copyright infringement. This is a role that the law firm of Davis Miles serves for many of its valued clients.
By way of simple example, the DMCA works as follows. Mark gives his friend a copy of Mark’s new song which the friend posts on his myspace.com website without Mark’s permission. Mark conducts a web search and finds his song. Mark’s lawyer contacts the Designated Agent of myspace and requests the song be removed.
To satisfy the requirements of the DMCA, myspace must remove the song, notify the friend, who then has the option of sending a counter-notice to myspace stating that the song was taken down unfairly. If Mark does not file a lawsuit against the friend in a short period of time, myspace can put the song back up.
Although the above hypothetical uses a song as its example, keep in mind almost anything can be posted on your site without your immediate knowledge which could give rise to a claim of copyright infringement. Pictures, books, hyperlinks to news articles, porn……………. The law firm of Davis Miles strongly recommends that if you operate a website that allows users to post content and you have hosting responsibilities, that you be in compliance with the DMCA safe harbor provisions which will insulate you from liability. We will gladly assist you with this endeavor.
A secondary issue of website liability concerns defamation. What liability arises if a user posts defamatory content about a third-party on your site? Probably none. The Communications Decency Act of 1996 has been interpreted to say that the operators of Internet services are not to be construed as publishers and thus are not liable for the words of third-parties who use their services.
One final cautionary note. If you allow people to post advertising for housing or roommates, or other personal involvement, you must be aware of the Fair Housing Acts, both state and federal, and other laws that prohibit discrimination on the basis of sex, religion or race. There are several cases winding their way through the courts involving websites and these issues. Please feel free to contact Davis Miles, PLLC for assistance with any of your information technology, intellectual property legal needs.