Article

• Jurisdiction: United States,Federal
• Citation: Vol. 27 No. 6 Pg. 14
• Pages: 14
• Publication year: 2014

Article Vol. 27 No. 6 Pg. 14 Utah Bar Journal December, 2014

November, 2014

How Websites Can Reduce Their Copyright Infringement Liability for What Users Post

Sarah E. Jelsema, J.

Many popular websites, like YouTube, Pinterest, and Facebook, rely on content that users contribute. Delegating content development to the masses can be an excellent business model. However, by permitting users to upload photographs, videos, text, and other content, website owners can find themselves defendants in lawsuits for copyright infringement.

U.S. copyright law automatically protects works like photographs, videos, and text as soon as the photograph is taken, the video is recorded, or the text is written. A few exceptions exist for works like data compilations, but even a kindergartner's crayon scribbles count. Copyright law places restrictions on what people can do with works that are protected by copyright. If a website displays a photograph or poem without the copyright owner's permission, copyright infringement has likely occurred.

A copyright owner suing an alleged infringer has two options for seeking damages: (1) the owner can seek actual damages and the infringer's profits, or (2) the owner can seek statutory damages of $750 to $30,000 per infringed work if the work was registered with the U.S. Copyright Office, and up to $150,000 per registered work if the owner alleges that the infringement was willful. These statutory damages provide content-producers such as photographers and authors with a great incentive to register their works.

Both website owners and users may be liable for copyright infringement when users post copyrighted material to a website. The experience of companies like YouTube, Pinterest, and Facebook demonstrates that even when a website's Terms of Service agreement prohibits users from posting infringing materials, users regularly do so. How do these sites survive if their users are constantly subjecting them to thousands of dollars of copyright infringement liability?

Following the Digital Millennium Copyright Act Requirements Can Reduce a Website's Liability for User-Generated Content

The Digital Millennium Copyright Act (the DMCA) creates a safe harbor from copyright infringement liability for websites that allow subscribers to add content. The sections of the DMCA discussed in this article were enacted in 1998 and are found at 17 U.S.C. § 512. By following the DMCA requirements, these sites can avoid - or at least greatly reduce - liability for copyright infringement resulting from the acts of their users.

Websites like YouTube follow the DCMA's safe harbor provisions to the letter. Unfortunately, many smaller companies with websites allowing users to add content only become aware of the DMCA and its requirements when they contact a...