If I have a blog and post up a picture of some artists work, he/she can come after me for a copyright breach. However what happens on a large website where users can upload images as they wish. Moderators can't be educated on whether every user has permission to publish that image. In the event that a user posts a copyright image that they do have have permission for on a community forum, how to the website owners protect themselves from a claim?
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1I suggest reading some of the questions and answers on DMCA, which basically says what you have to do to protect yourself from liability in that circumstance.– user6726Commented Jun 22, 2017 at 14:48
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2 Answers
In the USA, you are covered by the DMCA act, which you should most definitely read.
I don't have basis to sue you and your website for copyright infringement unless I first send you a DMCA takedown notice.
In the DMCA notice I have to tell you who I am so that you can contact me, I have to tell you under perjury that I am the copyright holder or an agent of the copyright holder of some work, and that I believe your website is infringing on that copyright. You then have the choice to remove the material, which means I cannot sue you for copyright infringement because you acted on my DMCA notice, or you can refuse to remove it and I can include you in a copyright infringement lawsuit. By not acting on a DMCA notice you take full responsibility.
If you remove the material, you should inform the person who uploaded it. That person can decide to be Ok with the removal (and hope they won't get sued for copyright infringement, and they usually will be fine), or they can send you a counter notice. That counter notice would tell you that the uploader believes he or she isn't infringing any copyright. After receiving a counter notice, you may reinstate the material, and you tell the sender of the DMCA notice. Again, you are now legally protected. The uploader can now be quite sure to be sued, unless the DMCA notice was sent in error.
answered Jun 24, 2017 at 9:11
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1This is a very good answer. My only comment would be to look into how many suits have been launched against violators who remedied the infringement upon notification. (I'm just not aware of many cases where an entity without major assets was sued for infringement in situations where the material is removed.) Fair Dealing in the UK is much stricter than Fair Use in the US.– DukeZhouCommented Jun 24, 2017 at 21:08
In the US, If the reposted content is protected by Fair Use, there's no problem.
Anything not covered by Fair Use is a violation of copyright. In the US, the 3rd party website or forum only has liability once they are notified of the infringement if they don't take action to remove the content.
- In general, any commercial entity or even presumably a major nonprofit forum is going to get liability insurance to protect against this.
Usually a "Cease and Desist" letter precedes any legal action. The reason for this is intellectual property litigation tends to be "ruinously expensive", and thus is avoided even by most major companies if other options provide remedy.
Where you do see large companies or individuals pursuing litigation is in instances of flagrant violation (like the old file sharing sites.) Sometimes artists will pursue such a suit to bar someone they don't like from utilizing their art, such as in the case of political campaigns using popular songs.
But it's much more rare to see a case go all the way to a decision. Large sites like youtube have a history of "erring on the side of caution" and removing content even when it's not clear it is truly in violation. (This likely has to do with the 3x damages. The person who posted isn't a lucrative target, but a big company definitely is.)
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There is much more to "safe harbor" than taking down when notified: no money coming from infringement, having no idea that the material is infringing ("knows, or should know"), complex rules about the designated agent and proper processing of takedown claims (the obligatory perjury statement), the put-back provisions. Also, some things are not covered by Fair Use but are also not infringing: items posted with permission.– user6726Commented Jun 22, 2017 at 21:27
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@user6726 absolutely, but damages are always hard to prove, and I can't see a company wanting to spend money to litigate against a forum or community website, because there's no profit in it. Unless the forum refuses to comply, as with the file sharing piracy companies. A huge disconnect I see all the time is in regards to the extraordinarily high costs of IP litigation. Getty has a bad reputation for "shaking down" inadvertent infringers, and it seems to have hurt their bottom line in that individual designers are now avoiding their content.– DukeZhouCommented Jun 23, 2017 at 15:33
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But under that reasoning, your answer should have been "they won't bother litigating so you'll be safe", i.e. you're interpreting the question as asking for "what should I do" advice, rather than an accurate statement of what the law is.– user6726Commented Jun 23, 2017 at 15:41
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@user6726 yup, which is just as useful as reading and understanding the statutes, and arguably more important. High cost of IP litigation is what allows patent trolling, not the law itself per se. Thus the mechanics of how things actually work is critical information, particularly for those without experience in these mechanics (i.e. non-lawyers)– DukeZhouCommented Jun 23, 2017 at 15:44
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If an item is covered by "Fair Use", then you can very much be in trouble because you can be taken to court which is costly by itself, you can lose a case even if you were right, and lastly "Fair Use" covers much less than you think. Commented Jun 24, 2017 at 9:03