Problems With Online Protection of Copyrighted Material

Online providers of content, whether they be YouTube, video sites, message boards, or social media, have no way of screening every single post, comment, video, picture, or advertisement that may appear on their site. Yet, we know that many characters, songs, logos, or literary work, are protected by intellectual property law.

How does a website stay safe from getting sued for copyright infringement, when something is posted to their site that may violate someone else’s intellectual property rights?

The DMCA

The answer is the safe harbor provided by the Digital Millennium Copyright Act, signed all the way back in 1998. There are a number of “safe harbors” that websites can use, to protect them from being sued when people upload content or information onto their websites, that violates copyright laws.

The first requirement is pretty obvious: The website can’t be creating the content that infringes on the copyright. It has to be created by someone else.

For example, assume someone uploads a video with a licensed, copyrighted song in the background. It’s the user/uploader who created the content—not YouTube. All YouTube is doing is providing a  process for uploading that others can utilize. Thus, YouTube is safe, legally.

But the other safe harbor can be more difficult to demonstrate. The website or online providers must be able to show that they were unaware that infringing content was being uploaded, shown, or used on their site. The website also can’t be making any money from the infringement, and the website must remove infringing material when and if it becomes aware of its existence.

Large providers, like YouTube, issue “strikes” to routine infringers, and the user can have his or her site, materials, or information taken down for repeating these offenses.

Problems With Enforcement

Of course, this has led to people purposely and falsely reporting other people for fake violations, simply to get rid of competition, or for some other nefarious reason, such as spite or vengeance. There have even been instances of extortion, where threats are made to report material as infringing, unless money is paid.

In some cases, the sites may not even have a way to verify that the person complaining about the infringing material, is the actual owner of the intellectual property they are complaining about.

Another problem is that valid and legitimate owners of intellectual property are restricting users from uploading information that the user actually owns, and has a legal right to use. The law is often used to prevent people from copying works that they own (which is generally permitted), or from jailbreaking phones. For example, a copyright owner may use the Act to force a message board to take down a legitimate and legal discussion about how to jailbreak their phones, or cheat on their video games.

Whether your business exists in the physical world, or online, we can help you with any legal problems you or your business or website may have, including copyright and intellectual property problems. Call the West Palm Beach copyright litigation attorneys Pike & Lustig, LLP, at 561-291-8298.

Resource:

copyright.gov/legislation/dmca.pdf

https://www.turnpikelaw.com/when-is-derivative-work-a-violation-of-someones-copyright/