Get Out of Jail Free – The DMCA (Digital Millennium Copyright Act)

Ever play Monopoly? Most people have, and they’ll tell you that a "Get out of jail free," card is an excellent thing to have on hand. It allows you to keep playing the game, instead of losing a turn, even when you end up getting sent to "jail." Think of the relief; instead of landing in jail and fighting to get out, you can go on your merry way without much consequence.

Ever heard of the Digital Millennium Copyright Act (DMCA)? Heading a table at Affiliate Summit in Miami last week on legal issues, I was amazed at how many people in our industry haven’t. Yet it contains an absolutely FREE, "get out of jail free" provision in regard to copyright violations. Confused? Let’s clear it up for you, so that you can take advantage if you’re not already doing so.

As an Online Service Provider under Title II of the Digital Millennium Copyright Act, 17 U.S.C. Section 512 ("DMCA"), you must respect the legitimate rights of copyright owners. Posting an appropriate DMCA policy is the first step in protecting yourself.

If you have a DMCA policy posted on your websites, the DMCA provides a legal procedure by which any holder of a copyright may request any Online Service Provider to disable access to a website where the copyrighted work appears without the permission of such person. There are two parts to the legal procedure: (1) Writing a Proper DMCA Notice, and (2) Sending the Notice to a Designated Agent.

A Proper DMCA Notice will notify the recipient of the particular facts in writing and signed under penalty of perjury. It must identify the author as the owner of a copyrighted work(s), or a person "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

It must also provide the authors contact information, including their name, street address, telephone number, and email address. The author must state that the notice is accurate under penalty of perjury and it must be either physically or electronically signed.

But here’s the key; to exercise their DMCA rights, a complaining party must send the DMCA Notice to the agent you have designated in your DMCA NOTIFICATION POLICY. Without a posted DMCA policy you’re vulnerable to an immediate copyright violation lawsuit…without prior notice!

Don’t have a posted DMCA policy? Then you definitely need to call counsel immediately and get it done. This posted policy is an important legal protection which should appear on each and every website or landing page owned and operated by your company. The notice is the magic "get out of jail free" card that allows you one free mistake as to each copyright violation as long as corrective action is taken immediately upon notification. Without such notification or designated agent, you run an unnecessarily high risk of a copyright violation lawsuit.

Your posted Notice should follow the procedures provided in the DCMA, which prescribes a notice and takedown procedure, subject to a webmaster’s right to submit a counter-notification claiming lawful use of the disabled works.

Once your DMCA NOTIFICATION POLICY is in place, the most important thing to remember is to respond to each and every cease and desist letter immediately. Take them seriously, respond professionally, and document your responses in a permanent format.

Notify the sender that you have received the letter and, according to your own posted policy, you are investigating the claim and will take corrective action as appropriate. Once your investigation is complete, notify the sender of your findings.

If you have found a violation, be sure to notify the sender of the corrective action you have taken. The policy combined with proactive attention on your part will inevitably avoid a long and costly copyright violation law suit.

If you’re looking for more specific guidance in putting together a DMCA policy for your company, contact an attorney with appropriate intellectual property and Internet experience to assist you. I’ve pulled much of the above material from the site of The Goodman Law Firm (www.thegoodmanlawfirm.com). Linda Goodman, Esq., is one of the leading attorneys in the practice of Internet law today.

_____________________________________________________________

Come back to the iLegal column every week as we get specific about the rules, regulations, laws and trends that affect the online advertising industry. Each week we discuss important legal issues, talk about how to avoid the pitfalls, and cover the breaking legal and regulatory advertising industry news.

Legal Disclaimer: Information conveyed in this column is provided for informational purposes only and does not constitute legal advice. These materials do not necessarily reflect the opinions of Digital Moses, and is not guaranteed to be complete, correct, or up-to-date. The column is provided for "information purposes" only and should not be relied upon as "legal advice." This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this column without seeking the advice of an attorney.

Mark Meckler is the General Counsel for UniqueLeads.com, Inc., and Unique Lists, Inc.

Copyright 2007 Mark J. Meckler