Cyber Law

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.

For 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 claim.

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 provisions.

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!

Unfortunately, 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.

The first 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.