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I do NOT have an LLC. I'm creating a website that allows users to submit their photos and artwork for voting. (no cost for memberships)

When a user signs up, they'll check a box saying they've read and agree with an "Acceptable Use Policy\TOS" which states that only original material to which they have the rights, and non pornographic material can be uploaded (of course explained in much more detail.. Essentially nothing illegal).

I know Copyright law (in the USA) has a safe harbor provision for content host, and I'll have a link on each image which allows people to report the image for copyright violation, or for any other abuse of the TOS.

Is this enough to keep me personally protected? One of my fears is that someone will upload an image that's either copyright or child pornography and that someone ELSE will successfully sue me for damages.

Is this a rational concern? And will an Acceptable Use Policy\TOS protect me (if properly written)?

(Note: I will eventually get an LLC, but I want to get this site published first until I have the funds to hire a lawyer.)

  • This ain't an answer, but I doubt you should have any concern. As long as you listen, and follow laws as they are, you should be in the clear. It may be helpful for you to model your policies off of those of online communities such as tumblr or Stack Exchange :) – Zizouz212 May 1 '16 at 16:29
  • Do you need a lawyer to create an LLC? Your fear shouldn't be that you are successfully sued, but that you are sued, because it's going to be expensive, whether you win or lose. Nothing can protect you from being sued, but an LLC protects you from losing your money. – gnasher729 May 14 '16 at 20:04
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This may not protect you entirely.

In order to qualify for the DMCA safe harbor, you need to, among other things, designate an agent, and provide contact information on your website and also file the information with the Copyright Office. I don't know if the contact information is on your website, but I'm guessing you didn't provide the information to the Copyright Office. In any case, the DMCA does not protect you against child pornography charges.

The TOS does not completely shield you from liability, either. You could include a clause that the uploader is responsible for damages, but the person suing you doesn't care about your agreement with the uploader. Maybe you won't be able to find the uploader, maybe they'll be in a jurisdiction you can't touch, and maybe they simply won't be able to pay. And, as mentioned in a comment, defending a lawsuit might drain your resources even if you win. If there's no LLC, then any lawsuit can go after your personal assets.

But, while your steps may be inadequate, I don't think they're useless. They may help show that your site isn't supposed to have such content, and intent can matter even where it isn't decisive. For example, ordinary copyright infringement can incur statutory damages of $750 to $30,000 per work. But if you can establish that the infringement was innocent, which your steps may help to do, the lower bound may be reduced from $750 to $200.

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