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The DMCA, passed in the U.S. in 1998, exempts on-line service providers (in most situations, website operators), that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider`s network through which they engaged in the alleged activities is not liable.
In order to have an allegedly infringing web site removed from a service provider`s network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:
* The name, address, and electronic signature of the complaining party
* The infringing materials and their Internet location, or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials.
* Sufficient information to identify the copyrighted works.
* A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of.
* A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner.
In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.
In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent`s name and address and make that information publicly available on its web site.
Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. The service provider must not gain any financial benefit that is attributable to the infringing material.
Good luck, and be careful out there!
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Pepper Law Group, LLC
21 E. High Street, Suite D
Somerville, NJ 08876
informationlaw.com
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