By Mike Hiestand
When it comes to liability for copyright infringement in traditional print publications, most of you (hopefully) already know the general rule: if you publish it, you are responsible for it.
That means if you can’t reasonably claim a fair use exemption, you have a responsibility to obtain clearances (permissions, licenses, etc.) for all copyrighted content you or your staff did not create prior to publication. That includes an obligation to clear material submitted by third parties, such as an outside contributor or an advertiser. (If you’re not familiar with “Fair Use” or some of the other copyright basics, please see the SPLC’s Student Media Guide to Copyright Law. Failure to do so can subject your publication to legal action for copyright infringement, which can include stiff monetary penalties and the assessment of lawyer’s fees.
Online media are similarly responsible for avoiding copyright infringement, but with a few wrinkles.
The wrinkles stem from the unique capabilities of online media. One of the big ways online media differs from traditional print publications is that it is – or can be – a two-way experience. That is, visitors to your website might not only be consumers (readers) of the information you have posted, but – depending on the your website’s features – they might be contributors or publishers on your site as well.
Some student media allow visitors to publish material directly to their website, such as through a “feedback” feature that allows readers to post their comments about a news story, or in an online forum that encourages users to share their opinions about current topics. Other student media may host a chat room, a blog or sponsor an e-mail discussion list. In all of these cases, non-staff members are publishing information on your site, often with limited or no editorial control or oversight from the student media staff.
Of course, if you or a staff member illegally posts copyrighted material to your website, you can be sued for copyright infringement. Nothing has changed there. But what if one of your website’s visitors posts the copyrighted material in your chat room or on your bulletin board without your knowledge? Are you responsible for that?
Maybe not. Enter the Online Copyright Infringement Liability Limitation Act (OCILLA), 17 U.S.C. Sec. 512.
Lawmakers understood the unfairness in holding online service providers and operators financially responsible for everything that might be posted on or transmitted through their systems. It simply is not reasonable to expect them to keep tabs on everything their users have done. At the same time, however, Congress did not want to give copyright infringers a free pass to do things online that they would not be permitted to do elsewhere.
OCILLA represents the balance lawmakers struck. Under the law, online “service providers” will not be financially responsible for acts of copyright infringement committed by others if they take certain steps and adhere to some specific – and somewhat complex – rules.
While there are few case interpreting the fairly new law, the definition of a “service provider,” which covers both “providers” and “operators” of online communication services, is broad enough that it should protect not just the AOLs of the world, but also the operators of any website or other online service that allows outside users to upload and post information.
The following is general example of how the law is supposed to work:
Without permission, Bart posts a copy of a photo owned by Lisa to the Student Times’s online discussion board.
While surfing the Internet, Lisa finds the photo. She then sends a letter to the Student Time’s designated agent, which includes: (1) her contact information, (2) information that identifies the photo, (3) the Internet address of the photo, (4) a statement that Lisa has a good faith belief that the use of the photo on the discussion board is illegal, (5) a statement that, under penalty of perjury, she is the copyright owner or has legal authority to act on the owner’s behalf and (6) Lisa’s signature.
After receiving the letter (or becoming independently aware of the infringement), the Student Times “expeditiously” removes the photo and sends Bart a notice telling him that they have done so.
If Bart believes the photo was unfairly removed he can send a counter-notice to the Student Times that includes most of the same information as Lisa’s letter, along with a statement saying that he has a good faith belief that the material was mistakenly taken down and agreeing to have the case heard by a U.S. federal district court, as determined by the law.
The Student Times notifies Lisa of Bart’s claim and waits to see if Lisa files a lawsuit against Bart, which will sort out the legal rights of the parties.
If Lisa does not file a lawsuit, the Student Times puts the photo back up between 10 and 14 business days after informing Lisa of Bart’s counter-notice.
If the Student Times follows the above steps in a timely manner, it will be immune from the recovery of any monetary damages sought by either Lisa or Bart in the event of a lawsuit regarding Lisa’s photo.
Note that the above provides only a general overview of OCILLA and its so-called “take-down” and “put-back” provisions. It is essential that you read OCILLA’s fine print for more specific information. Additionally, the law also sets deadlines for most of the steps. While OCILLA is not rocket science, its provisions are fairly rigorous and the failure of a party to carefully abide by all of the rules and meet the deadlines can disqualify online media from availing itself of OCILLA’s immunity or prevent copyright owners or system users from protecting their interests.
Unlike the liability provisions in the federal Communications Decency Act, which also protects online service providers from liability for certain content created by third-parties but requires no prior action on the part of the provider, online student media seeking to take advantage of OCILLA’s liability shield must have first done the following:
1. Designate an agent to receive and send notices. For student media, whose student staff is transitory, the selection of an agent may pose additional challenges. For practical reasons, it would be best, where possible, to select a permanent staff member or another individual with a more “fixed” presence whose availability can be depended upon. If that is not possible and student staff members are designated, it will be necessary to establish a regular system for updating the agent’s name and contact information. Whoever is selected, it is essential that the agent take the time to fully understand his or her obligations under the law and be prepared to respond to notices in a timely manner.
2. Register the agent with the Register of Copyrights. Registering requires paying a one-time fee (currently $30) and mailing a form (available at http://www.copyright.gov/onlinesp/) to the Copyright Office. (Note that at present, designating a new agent will require the filing of a new form and registration fee.)
3. Post contact information for your agent on your website along with a notice providing a general explanation of OCILLA.
4. Develop and post a policy for terminating repeat offenders and provide (or presumably direct) users to information about copyright laws.
5. Make sure that your website or other online system accommodates standard technical measures used to combat copyright infringement.
Additionally, in order to qualify for immunity, you must not receive a direct financial benefit from the posting of the infringing information, such as the receipt of a royalty payment.
While some of the law’s requirements may sound daunting, examples for many of the notice provisions or policies required by the law are widely available and can be fairly easily adopted for use by your student media.
To date, few student media organizations appear to have taken the steps necessary to take advantage of the law’s protections. Student media that do not allow outsiders to post content to their website or other online forums probably have no pressing need to explore OCILLA further. However, for those who do provide significant opportunities for third-party contributions, taking advantage of the law’s immunity provisions are almost certainly worth the limited expense and moderate effort involved.