Most people start forums because they are interested in a subject
and want to create a community where others can chat about the subject
as well. There are, however, downsides to forums from a legal
perspective if you aren't careful. One is the potential liability a
forum owner can face in relation to copyright infringement issues.
all the talk about the Stop Online Piracy Act, the truth of the matter
is the Digital Millennium Copyright Act ["DMCA"] actually provides an
effective methodology for copyright owners to demand the removal of
illegally posted information. Known as a takedown notice, the copyright
owner can serve the demand on the offending site that must then take it
down and give notice to the poster who can then refute the copyright
As you can imagine, this process can be a bit taxing on
forum owners. One never knows, after all, when someone is going to post a
copyrighted image, article or what have you as part of a discussion and
few forums have the resources to monitor every post made on their site.
Fortunately, the DMCA contains provisions that allow the forum owner to
escape liability in such a situation so long as they comply with said
The magic subject we are talking about is the safe
harbor provision of the DMCA. This provision was created to give the
YouTubes, Facebooks and forum owners of the world some means for
avoiding liability for copyright claims while avoiding shutting down
huge chunks of the web as we know them. So long as the site in question
complies with the requirements of the provision, it is immune from
liability. So, what does a forum owner have to do? Let's take a look and
identify where site owners go wrong.
The first requirement is to
clearly post a copyright infringement claim page. This page provides
copyright owners a method for contacting the site and making their
claim. There are statutory provisions that must be included in the
statement, but the language is pretty simple. Site owners who let people
post on their sites are familiar with this provision and have DMCA
notices up on their site. If you don't, act immediately!
this is where most forum and site owners stop. They think that slapping
up a DMCA notification page is all that is needed, but it is not. There
are additional requirements and the failure to meet then results in the
loss of the safe harbor protection from liability.
additional requirement is that the site owner designates a DMCA Agent.
This is the person who will handle the claims that come in. Their
information should be included in the DMCA notification language, but
that isn't all. The DMCA Agent must also be registered with the
Copyright Office. This is where most sites go wrong. They fail to
register, which leads to the loss of the safe harbor provisions. If you
let people post on your site, have you designated and registered a DMCA
Agent? If not, you are not in compliance.
A second additional
requirement is the forum must have a clear policy on how it will handle
repeat copyright offenders. For instance, what will it do if the same
member of the forum continually posts infringing material? The obvious
answer is the person should be banned from the site and the policy
should state as much. Regardless, there must be a policy and it must be
published clearly on the site.
The provisions of the Digital
Millennium Copyright Act have long been criticized by just about
everyone. The criticisms certainly have merit to one extent or another.
Having said that, the safe harbor provisions of the DMCA provide a huge
benefit to forum owners so long as they take the time to comply with
them. If you own a site such as a forum where people post to your site,
make sure you do just that.
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