Online Copyright Rule Tune-up

The Digital Millennium Copyright Act is a 1998 federal act that provides copyright holders with significant protections from online copyright infringement. Through its safe-harbor provisions, the DMCA also offers safeguards for website operators facing copyright claims based on materials posted to their website by third parties.

In Dec. 2016, the U.S. Copyright Office made some small but significant updates to the administrative requirements for the DMCA. Every website operator should be aware of these changes, as they require you to take action by or before Dec. 31, 2017.

How the DMCA Matters to REALTOR® Association and Member Websites

Copyright litigation can spark from the simple act of right-click-copy-paste or from a complex series of image transfers across multiple internet platforms. No matter the origin, copyright violations are serious business, and even inadvertent infringement can lead to financial losses and damage to your reputation.

REALTOR® association and member websites that allow third parties to post, publish, or push data onto their websites are especially vulnerable to copyright infringement claims, even if the business itself took no affirmative steps to publish the material in question. In the real estate industry, typical examples include blogs that allow visitors to post comments or reviews or broker websites that provide for the unmoderated display of third-party listings, most commonly via an IDX feed. Association websites can also be at risk in member forum sections and blogs.

Fortunately, thanks to the DMCA’s safe-harbor provisions, website operators can protect themselves from copyright infringement liability that could otherwise arise due to third-party activity on their websites. NAR believes this safe harbor protection would include MLSs and participants and subscribers hosting an IDX feed, provided they comply with the DMCA safe harbor requirements. (See below for practical tips on how to comply with the DMCA.)

New Copyright Agent Registration Requirements

In the almost 20 years since the DMCA’s inception, the U.S. Copyright Office has struggled with the best way to handle the registration of copyright agents. The copyright agent is the person you designate to handle copyright infringement claims regarding your websites—basically, it’s the contact person you’ve registered with the government in case anyone wants to claim that you violated their copyright. Maybe it’s you, maybe it’s your tech guy, and maybe it’s your association attorney.

During the past two decades, the registration process for copyright agents has been deemed an interim system, relying on a paper-based registration process. Copyright agents have been required to print out a form, fill it out, and mail it in to complete their registration.

All of this is, of course, a bit ironic considering that the name of the act contains the word “digital.” As of December 2016, this outmoded system was officially put to rest and a streamlined digital system was launched. Registration fees per each copyright agent have also been reduced from $105 to $6 per registration.

While much of this is good news, the new registration system does have one rub: All existing copyright agent registrations are going to be wiped out. Permanently. What does that mean from a practical standpoint? By or before Dec. 31, 2017, all website operators must reregister their copyright agents on the new copyright agent registration system, located at dmca.copyright.gov/osp/login.html. Website operators who fail to reregister their agents will lose their right to claim DMCA safe harbor protections.

In addition, under the new registration system, a website’s copyright agents must reregister every three years.

The DMCA safe harbor is a vital layer of protection for website operators. To help retain those protections, it is vital that you comply with the new copyright agent registration requirements.

Visit the U.S. Copyright Office’s agent registration page to get started.

How to Register for Copyright Infringement Protection for Your Website

To take advantage of DMCA safe harbor protections, website operators must meet a number of key requirements. First, they must not have any actual knowledge of the infringing activity or otherwise be aware of facts or circumstances that make the complained-of infringing activity apparent. Second, they must not receive any direct financial benefit from the infringing activity if they are capable of controlling the infringing activity. And third, website operators must post and follow a DMCA notice on their website (NAR’s is pictured right). A DMCA notice must include the following information:

1. A termination policy for repeat infringers. To qualify for safe-harbor protection, a website operator cannot allow the same person or entity to repeatedly publish infringing material on the website. An effective DMCA notice will provide an affirmative statement that repeat offenders will not be tolerated. NAR includes repeat infringer language in the “Termination” and “DMCA” sections of its Terms of Use.

2. A takedown procedure. The DMCA notice should clearly explain the steps to take if someone suspects that material published to the website constitutes copyright infringement. It should also explain that potentially infringing material will be removed promptly following receipt of a takedown notice, including how to send a “takedown notice” to the copyright agent to inform the website owner of the potentially infringing material.

The DMCA notice should also state that infringing material will be promptly removed following receipt of a takedown notice. (And website owners should be sure to follow through on this statement, as leaving infringing material up will disqualify the business from safe harbor protection.)

3. Contact information for the website operator’s copyright agent. In order to take advantage of the DMCA safe harbor provisions, a website operator must designate a copyright agent and include the name, phone number, and email address for the copyright agent in the DMCA notice. A copyright agent can be an attorney, a business owner, or any other person who is ready, willing, and able to handle copyright infringement claims regarding the website. The website owner must also register the Copyright Agent with the U.S. Copyright Office. This is where the December 1, 2017, deadline comes in.
 

Jessica Edgerton is an associate counsel at the National Association of REALTORS®.

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