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27 Nov 23

Avoiding Contributory Liability With Notice and Takedown Policies

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Last Updated on: 15th December 2023, 06:06 pm

Avoiding Contributory Liability With Notice and Takedown Policies

Contributory copyright infringement is a big deal these days. Lots of websites and online services can get in trouble if their users upload copyrighted stuff without permission. But there are some simple things you can do to avoid getting sued!

What is Contributory Copyright Infringement?

Basically, it’s when you help someone else break copyright law. For example, if someone shares an illegal copy of a song on your website, you could get blamed too. Even if you didn’t upload it yourself!

Courts say you’re guilty of contributory infringement if:

  • You know about the illegal copying
  • You materially contribute to it – like by hosting the files on your servers
  • You fail to take action against it

So if someone shares pirated music on your site, and you know about it but don’t take it down, you could get sued. Even if you didn’t upload the songs yourself.

Using Notice and Takedown Policies

Luckily, there’s an easy way to avoid contributory liability – notice and takedown policies! Here’s how they work:

  1. Copyright owners send you a formal notice identifying infringing content.
  2. You quickly remove (or “take down”) the content identified in the notice.
  3. That protects you from being sued for that infringement!

As long as you have a policy to promptly remove reported infringements, courts will usually protect you from liability. You just have to be careful and respond to all valid notices.

What Makes a Valid Notice?

For a notice to be valid under the law, it must:

  • Identify the copyrighted work being infringed
  • Identify the infringing content (with URL, etc)
  • Provide the owner’s contact info
  • Include a statement of authority to act for the owner
  • Include a statement that the notice is accurate

As long as it includes all that, you have to take the content down or risk losing your safe harbor protection.

How Quickly Should You Respond?

The law doesn’t specify an exact timeframe, but courts agree you need to act “expeditiously” to remove reported infringements. In most cases, taking it down within a few days is enough. But for really egregious piracy, you may need to act even faster.

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The key is showing that you take reports seriously and make infringement a priority. Slow or reluctant responses could put you at risk.

What About Bad Notices?

Copyright owners sometimes send invalid or abusive notices. For example:

  • Notices lacking required info
  • Notices about content that’s clearly fair use
  • Notices sent by competitors to take down legitimate material

You don’t have to take down content if you have a good faith belief the notice is improper. But it’s smart to get legal advice rather than just ignoring notices.

User Counternotices

If you take down content in response to a notice, your users can file a counternotice to restore it. This starts a process where you notify the copyright owner and give them 10-14 days to sue before putting the content back up.

You’re required to process valid counternotices. If you don’t, your users could sue you under the DMCA’s misrepresentation provisions.

Other Important Considerations

Repeat Infringers

Under the DMCA, you must have a policy for terminating repeat infringers when appropriate. This means users who repeatedly upload infringing content despite takedown notices.

You don’t have to automatically terminate users – context matters. But you need “reasonable” policies to discourage repeat offenses.

Financial Benefit

Courts may be less sympathetic if you financially benefit from infringements you know about. Especially if you encourage or induce the illegal activity.

So be careful about things like placing ads on pages with infringing content. The more you profit, the more liability risk you could face.

Willful Blindness

You could also lose your safe harbor if you deliberately avoid learning about infringements. For example, if you discourage copyright owners from sending notices.

Actively sticking your head in the sand won’t protect you. So don’t try to avoid knowing what users are up to.

The Bottom Line

Contributory infringement is a big risk for websites and internet companies. But having a solid notice and takedown policy provides strong protection against liability.

The key things to remember are:

  • Respond promptly to remove content identified in valid notices.
  • Have reasonable policies to deal with repeat infringers.
  • Don’t profit from or induce infringing activity.
  • Don’t deliberately avoid learning about infringements.

Do those things, and you’ll be in pretty good shape against contributory copyright claims. Just be diligent and thoughtful in crafting your policies.

I hope this overview helps explain this tricky area of law. Let me know if you have any other questions!