Here are some Best Practices for using the DMCA Safe Harbor to protect your Web 2.0 site from a crippling infringement lawsuit:
- 1. Establish Terms of Use and Acceptable Use policies, which are posted on its website, and mention copyright policies and DMCA takedown procedures in these documents
- 2. Remind users of your policies during the upload process
- 3. Designate a Copyright Agent to receive notification of claimed violations
- 4. Provides information about how and where to send notices of claimed infringement
- 5. Warn users who violate the policy
- 6. Ban user accounts for repeated violations
- 7. Do Not let user register for accounts from email accounts you ahve already banned
- 8. Require users to create accounts to upload content (Brian: I have mixed views on this best practice. A site like Wikileaks where privacy is at issue may not want to do this. User for Veoh were NOT required to provide their real name.)
- 9. Finger print (hash) content so that duplicates can be removed automatically and future identical versions can be prevented from being posted
- 10. Respond to takedown notices quickly
- 11. Finally keep records of the number of takedowns and terminations of accounts to prove you are following your own takedown procedures.
Note: these best practices are from a cursory reading of the opinion please contact me (Brian at freedomforip dot ORG) if you have other ideas or thoughts. I strongly recommend consulting counsel when crafting your own takedown response, qualifying for the safe harbor provisions of the DMCA is extremely important for many websites.
These best practices are take from IO Grop v. Veoh I strongly recommend reading the whole opinion. Here are EFF’s thoughts on the opinion:
This ruling provides valuable guidance to companies that host video, audio, and text files on behalf of users (see, e.g., Muxtape). Too many “Web 2.0″ start-ups are careless about the requirements of the DMCA safe harbors. They don’t register a Copyright Agent, or keep good records of their responses to takedown notices, or have a demonstrable policy of terminating “repeat infringers.” Sure, doing this “compliance” work costs time and money. But, as the Veoh decision demonstrates, the payoff can be enormous, since copyright is almost certainly the biggest liability risk these sites face.
Final note: This opinion does NOT address fair use with regards to DMCA takedowns. Best practices should be customized to take creative reuse and political speech into account. I am not aware of a working model that currently does this.
