Catch the tiger by the tail: counseling the burgeoning government use of Internet media.

• Author: Brody, Carl E., Jr.
• Position: City, County and Local Government Law

The phenomenon of Internet media has grown exponentially over the past decade, and local governments are beginning to take advantage of the benefits of social networking. Internet media, as the term is used in this article, consists of Web sites operated by governmental entities or elected officials. This definition includes public Web sites, social networking Web sites initiated by agencies of a public body or the public body itself, such as Facebook, Twitter, and YouTube; and Weblogs (more commonly known as blogs) maintained by the public body or any of its agencies. Through Internet media, local governments and their agencies are able to advertise, market, provide notice to constituents, and provide information to residents and nonresidents worldwide. Elected officials are also employing these new media as a way to interact more directly with the public and promote their individual political positions. Overall, both elected and governmental officials are outpacing legislative ability to create standards and protections for use of these new forms of communication, making it easy for users of this technology to inadvertently create liability for themselves and their agencies. The power of this technology assures that liability and compliance concerns will need to be addressed by government attorneys now and in the foreseeable future. As such, this is the time to begin understanding the unique legal issues relating to social networking through Internet media.

Liability Protection

The federal government was proactive in predicting the meteoric development of Internet media and the potential for liability issues to arise through the use, both private and public, of this vehicle. As such, it enacted two primary provisions to address these concerns: 1) 17 U.S.C. [section] 512 and 2) 47 U.S.C. [section] 230.

Digital Millennium Copyright Act

In 1998, Congress passed the OnLine Copyright Infringement Liability Limitation Act (OCILLA) (1) in an effort to protect Internet service providers (ISP) from being held liable for the actions of their users. The service provider designation in the act applies to both primary and secondary providers so long as the ISP is not responsible for the posting of infringing material. A primary provider is an ISP that creates a Web site that interacts with the public and allows public comment or posting, whereas secondary providers use outside Web providers, such as Facebook, YouTube, or Twitter, in order to network. (2) The Digital Millennium Copyright Act (DMCA) protects both categories of provider when the potentially infringing content is posted by a user without modification of the content by the ISP. The intent is to allow providers protection from the misdeeds of others in order to foster the free and open exchange of information on the Internet. Therefore, the DMCA fairly apportions blame to the person or entity that is actually responsible for infringing on the copyright through an Internet posting. Strict compliance with the terms of [section] 512 is required in order to retain the protections of the act.

Title 17 U.S.C. [section] 512(a) limits the liability of service providers from copyright infringement challenges based on the provider's transmitting, routing, or providing connections for material through its system or network, but only if the transmission was initiated by a content user and automatically transmitted to the Web without selection of recipients of the material, without making a copy that is retained, and without modification of the material. (3) What this means in the real world is that where a governmental body operates an Internet media site that allows users to view and post comments, it will not be found liable for the content provided by a user, so long as transmission of the content is automatically released by the provider's computer system. This will afford protection in almost all social networking circumstances since the purpose of these applications is to be open and interactive with outside users. Provider computer systems automatically release content consistent with the legislative intent of allowing open and free discourse through the Internet. Alternately, an ISP may block responses and postings by outside users, but this option is inconsistent with the reason for social networking and, though it may cure potential copyright claims, it is not consistent with the desires of local governments to create open and robust social networking.

Further subsections of [section] 512 expand Internet media protections, (4) but the exemption does not apply where the service provider has specific knowledge that certain content on its site infringes the copyright of another and takes no action to remove this material. (5) Consistent with this latter restriction, there is no liability to an ISP for removing user content if that action is taken in the good faith belief that the content violates copyright. On the other hand, if the Web content is provided by a subscriber, the ISP must take the extra step of providing notice of the removal. (6) Subscribers must also be informed of the ISP's policy prohibiting repeat infringers. (7) Subscribers receive extra protection because they are essentially secondary providers and may not be directly responsible for postings made by their users which affect the primary provider. Finally, an ISP must maintain a designated agent to receive claims of infringement, (8) which can be satisfied by including basic information of a contact person on the Web site.

To protect providers from potential liability for removal of content, as directed above, any misrepresentation that material is copyright protected when it is not violates the act and subjects the violator to damages, costs, and attorneys' fees. (9) Assertion of this provision is similar to frivolous lawsuit prohibitions.

The actual application of the act is currently under review by the courts, but some basic outlines and standards have been set. For example, in Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004), the court determined that an ISP would receive copyright protection under [section] 512 as long as it complied with the requirements of subsection (i). In order to satisfy this requirement, the ISP needed to have a policy in place to address copyright violation claims. The defendant in Corbis attempted to comply with this mandate through use of a participation agreement setting forth guidelines for use of the site and prohibiting material from being posted that the user knew to be in violation of copyright law. Plaintiff claimed that the basic language provided by the defendant, Amazon, was vague. However, the court disagreed, holding that even vague language was sufficient to satisfy the statutory standard, as Congress was not specific in drafting the provision and, as such, intended for service providers to have some measure of leeway in protecting themselves through the exemption. (10) For this article's purposes, this means that so long as a government ISP provides language similar to Amazon's participation agreement and obtains acknowledgment from the user forbidding the downloading of copyright protected material, the [section] 512 protections will remain in place. (11) Based on this interpretation, a disclaimer including the requirements set forth in subsections (c)(2) and (i) of the act, should be sufficient to satisfy the demands of [section] 512.

The courts have also addressed the question of how a complaint for copyright infringement is raised. Subsection (c)(3) of [section] 512 provides two basic requirements: 1) notice to the ISP of the copyrighted work that has been infringed and is currently being displayed on the provider's Web site; 2) and a good faith belief that the display constitutes an infringement. The notice requirement is straightforward but very specific. Notice will be satisfied only upon...