Copyright Agents

What's your liability if you allow third parties to post files and they post an infringing work to your site?

What should you do if you see that someone's ripping you off on YouTube or MySpace?

The Digital Millenium Copyright Act (DMCA) allows for a "safe harbor" for hosts where they are not liable for copyright infringement if it's been posted by third party, so long as they've registered a Copyright Agent with the Copyright Office. To designate an agent, go here at the Copyright Office's site. The fee is $80.

Once you have a designated Copyright Agent, put that information in your Terms of Service. For a good example of what such notice needs to look like, here's MySpace's Terms of Service, and the copyright notice is paragraph 9.

If you have been infringed by someone posting your material to a website you will need to contact their Copyright Agent to have it removed. The Agent is usually listed in the site's terms. You will need to give them 6 pieces of information which are:

1. Indication of the authority that you have. If you're not the copyright holder, a limited power of attorney works.
2. A description of the work.
3. Where the work is on the site.
4. Contact address, telephone & email.
5. Statement of good faith that the work's use is not authorized.
6. Statement that all the information above is accurate.

The site will have a reasonable amount of time to remove the infringing work and there is an appeals process if the accused infringer protests that the work is up in fair use.

Though established for providers such as YouTube and others who don't post their own material, sites like ITunes and others who clearly do post have Agents as well. It's now become common to start with the Agent even if the work was posted by the site in question or if the issue is outside of copyright such as trademark. The DMCA was not written to cover these instances, but people are using it to enforce actions that are much broader than the written word.

This is a good thing. We don't want to sue Apple because ITunes posted a track that the distributor didn't have the rights to. We just want a mechanism to notify them that they have to take it down. And we want a mechanism to systematize and regulate the policing of infringing works.