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| Web Links, Copyright Infringement Dangers and DMCA Safe Harbors The Digital Millennium Copyright Act (DMCA) passed in 1998, which amends the Copyright Act infringement remedies, is best known for its protection of ISPs, cachers and sponsors of electronic bulletin boards and chat rooms, all parties that can be unwittingly drawn into copyright infringement disputes as a result of their storage, transmission and reproduction of third party electronic materials whose contents they do not know and cannot easily control. As an initial matter, these types of service providers were the ones to seek the benefit of DMCA's protections. Our first Copyright Office filing was for a large ISP and was made within days of the passage of the Act. Such an ISP stores, copies and transmits vast quantities of electronic data on behalf of its clients but cannot possibly know much if anything about the data contents delivered to it by its clients online or on disk to be made available on its servers to the vast Internet user group worldwide. DMCA's offer of protection from copyright infringement claims to providers of "information location tools, including a directory, index, reference, pointer or hypertext link" in Section 512(d) of the Copyright Act, as revised by DMCA, has been less well known and more narrowly implemented. Indeed, in 1998, to the extent that links were a hot topic, the inquiry focused on whether linking (and its cousin, framing) constituted, in themselves, copyright infringement of original content on the linked site, not whether linking to infringing material on the linked site whose copyright was owned by third parties exposed the linking site to claims of infringement from the third party. While framing is still an issue under Washington Post Co. v. Total News (a case filed in federal court on February 28, 1997 and subsequently settled), links (even deep links to inner pages) appear legal and noninfringing today. Of course, as the Ticketmaster Corp. v. Tickets.com, Inc. case demonstrated, it is still prudent for the linking site to negotiate a linking agreement with the linked site to permit the use of its trademarks and domains names to facilitate the link and to avoid delinking. Today, the hot topic is whether the link exposes the linking party to infringement claims due to infringing content on the linked site. To the extent that this link is nothing more than a reference or bibliography coupled with a Web navigation facility, the whole concept of infringement seems distorted when applied to the "mere" link and even more distorted when applied to a search engine or directory (collectively, "site"). Unfortunately, the cases in which the theory has been discussed have involved "bad facts", such that the link has been regarded by the court as an incitement to the viewer to go to the infringing content and make a transitory RAM copy while viewing, possibly also copying it in long term electronic storage or printing it out - something characterized by plaintiffs and now some judges as contributory copyright infringement by the linking party. Indeed, even posting the addresses of sites with infringing material, without a link, may be found to be an infringing activity. The first significant case, Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., involved mere posting of addresses with information about what to find there - coupled with the bad facts in the background that a court injunction had been issued against the posting site requiring removal of the infringing materials from that site, followed by the site posting the addresses of three other Web sites where the same materials could be found, coupled with the "back online" message. More recently, similar theories have been asserted in cases involving Napster (A&M Records, Inc. v. Napster, Inc.) and MP3 (UMG Readings, Inc. v. MP3.com, Inc.) and the music location, exchange and downloading systems they make available on the Web. Today, all Web sites with links to other sites, as well as all search engines and directories, should seek the protection of DMCA and comply with its requirements. Such sites should file with the Copyright Office the form designating an agent for notification of claimed infringement with the $20 fee and post the appropriate DMCA notice on the site or the engine/directory "front door" pages, explaining who to contact with an infringement claim, what the site will do if its designated agent receives a proper claim, and how the site deals with repeat infringers under its policies. Sites may also want to incorporate the protective provisions in linking contracts, subscriber contracts and other contracts with third parties who supply site content or link the site to content which may be the subject of an infringement claim; such contracts should contain provisions prohibiting the posting of infringing material, permitting deletion of allegedly infringing material upon receipt of a claim and permitting termination of the contract relationship for cause in the event of repeated infringement. The initial Napster decision makes it clear that the site must have and enforce a policy to deal with repeat infringers and the case has sparked consideration of amending DMCA to specify short time frames for action by the site after notice; no time frame other than "expeditious" is now specified. Properly implemented, such a proactive DMCA policy will protect the site from infringement claims from copyright proprietors, as well as from contract claims from accused infringers when their posted content or link is removed or disabled. DMCA is poorly drafted and highly technical in its details about how the designated agent must handle infringement claims, as between the claimant and the alleged infringer, with notices and counternotices having specified content. Properly handled, however, the worst the site can expect in relief granted against it (as opposed to the underlying infringer who posted the material) is an injunction, but no damages. An added benefit is that many claimants will give advance notice of infringement and settle for removal of allegedly infringing material, whether or not the claim is covered by DMCA, thereby giving the site an opportunity to remediate and avoid or mitigate damages in a broader range of copyright infringement claims. © 2000 Davis & Gilbert LLP |
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