The big bad DMCA. On this day celebrating the birth of the United States, let’s talk about copyrights, user content and protecting your brand. This is not a post attacking the DMCA or copyrights. This is a post about what it means for your brand. Leave the fighting to the legal scholars who are already doing it. Your brand is not in the business of fighting laws. So let’s get to the business of helping you protect your brand.
Almost 15 years ago the Copyright Act was amended. Those amendments were made to implement provisions of the World Intellectual Property Organization’s (WIPO) own copyright protections. Known as the Digital Millenium Copyright Act (DMCA). While there have been a host of unintended consequences and many abuses by copyright holders, this post is not about blowing holes in it’s wording, but to show you how to make use of its safe harbor provisions as a brand.
As a brand, the DMCA comes into play whenever you provide any sort of user generated content (UGC) portal for your fans and customers. Any system you implement that allows them to give you content of their own making will require that you make use of the DMCA to protect your brand.
While we haven’t yet had a post on copyright basics, I did talk a few weeks back on Copyrights and Social. Making available any type of un-controlled content on sites under your control open your company and your brand to copyright liability. No matter your intentions and how the public good or some good is served, copyrights are agnostic. If you take someone’s creative work without consent, you are liable.
The DMCA, for all its faults, does codify the understanding that the mere transmission of infringed content is not as egregious as the knowingly making it available. If it didn’t, your cable provider would be liable to HBO for that latest episode of Game of Thrones you bit-torrented last week. In telecommunications terms, this is known as being a common carrier.
UGC Portals and the DMCA
Anytime you accept UGC you invite copyright problems. Some may think this is only about pictures, videos or songs. They would be wrong. It includes all copyrightable content. So, even hosting ratings and reviews on your own website opens you up to copyright problems.
I would even have some type of DMCA process for your website at large, outside of UGC. This may protect you if you are implementing content from third parties. I don’t think if it was really pushed it would protect you, but it might help.
Here is the good news, though. The DMCA protects you as a provider. As long as you comply with provisions of Title II of the DMCA, known as the Online Copyright Infringement Liability Limitation Act (OCILLA), you will be able to avoid liability to your company.
The first thing you need to do as a UGC portal provider is providing some agent that can be contacted by a copyright owner. This doesn’t have to be anything more fancier than just an email address portal that is monitored.
When you receive a proper takedown notice, you are required to remove it, or disable access to it. There are further provisions that the poster can make use of, but let’s focus on what you need to do.
A proper takedown notice, as outlined in OCILLA contains the following:
- Signature of the owner or their authorized agent. It can be electronic or physical
- Identification of the work infringed (or claimed to be infringed)
- Identification of the work in enough detail that the provider can locate it
- Contact information
- Good faith belief that the use is not authorized
- Statement that the information is accurate and you are authorized to act on behalf of the owner (if you are not the owner). Note: you are also stating this under penalty of perjury.
Further note on takedown notices. You are only required to respond to proper notices. An email to the general counsel that says “hey, you are using your stuff, stop it,” is not a proper notice. You are not required to respond to it in any form. However, you might want to reply to that email with how a proper notice should be made and put the ball back in their court.
Good News, Bad News
The good news and bad news about complying with a takedown notice is that you are offered very little leeway as the provider of that content. Even if you think fair use protects the infringing content, you are taking a chance by not removing the content. In that case I would recommend disabling access to the content and informing the poster of the takedown notice. Then you should just let them take the ball and run.
Unfortunately this is what the public sees as bad. As the provider of content you are only doing what protects your company. While taking on a nice copyright fight is fun, you are placing the assets of your company at risk to fight it. Very few large brands are going to pick that fight. What you get then is posters having their content removed with little to no fanfare and without any consultation. I would rather do that and point to the big bad DMCA then find myself on the receiving end of a copyright infringement lawsuit.
Protect Your Brand When Using UGC
Rest assured if you let your users and fans give you content, you will invariably be in receipt of infringing copyright. Some of it will be knowing, some it will be innocent. At any rate, you need to protect yourself and your brand. Build in automated checks on content received (even manual checks using Google Images is a good thing) and have someone monitor whatever DMCA contact you set up.
Let me also disabuse you or the notion that you only need to worry about the portals you operate, or expand your definition of operate. Do not think that running an app within Facebook shields you because you are on Facebook. Consider all the language in Facebook’s terms about them basically disavowing themselves of you if you do something bad. If I am in Facebook’s shoes and get a properly formatted DMCA takedown notice about content in an app on your fan page, I might just disable the whole fan page. You don’t want that.
When you are operating on social networks as the brand do not let your own feelings about the rightness or wrongness of laws and regulations guide you. Your job is to further your brand and protect it. Unless you want to be at the tip of the spear storming that castle I would recommend knowing what protects your brand and complying with that.
Bonus – UFC Video
And here is a YouTube video showing you what a UFC takedown looks like. Avoid getting in the cage with these folks.