Good Counsel: Stay in the Safe Harbor

Take steps this year to preserve your protection against online copyright infringement claims.

Many associations have blogs and other online content platforms that allow users to post comments, pictures, music—you name it—with ease. This feature obviously has benefits, but it also creates liability risks for the organization if users post content that potentially infringes on another’s intellectual property rights.

Associations can protect themselves from copyright infringement claims using the “safe harbor” provision of the Digital Millennium Copyright Act, which shields online service providers (OSPs) from liability for infringing content contributed to their social media platforms by third parties. To take advantage of that protection, however, an OSP must designate an agent to receive notice of an infringement claim. As of December 1, 2016, the process for designating an agent changed, and associations need to take steps this year to preserve their safe harbor protection.

Generally, an association OSP qualifies for safe harbor protection if it:

Does not have actual knowledge that the user was posting infringing content

Is not aware of facts or circumstances from which infringing activity is apparent

Acts quickly to remove or disable access to infringing material

Has a termination policy for repeat infringers that is communicated to users

Receives no financial benefit directly attributable to the infringing activity

Registers its designated agent with the U.S. Copyright Office and publishes the agent’s contact information on its website.

All OSPs are required to register their agents through a new online system by December 31, 2017, even if they have previously registered one, and registrations will need to be renewed every three years. Speak with your association attorney to ensure that your agent is properly registered and that you have proper procedures in place to take down infringing content.

Blake Hegeman, CAE

By Blake Hegeman, CAE

Blake Hegeman, CAE, is an association attorney in Virginia. MORE

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