10 Steps For Navigating Into The DMCA Section 521(c) Safe Harbor

Copyright infringement liability is one of the most publicized

and potentially costly legal risks facing online video sites,

social networks and other Internet sites which enable and

commercialize "user-generated" content. Whether

launching, operating, investing in or planning an acquisition of an

online business involving user-generated content, there is some

risk that such a business could attract copyright infringement

lawsuits. New media, social networking, gaming and Internet

companies (and venture capital and private equity firms that invest

in such companies) are advised to adopt practical strategies for

minimizing risk exposure to copyright infringement and other

liability arising from user-generated content.

Section 512(c) of the Digital Millennium Copyright Act

("DMCA") provides online service providers with defenses

against claims of copyright infringement liability for the

infringing acts of end users. Qualifying for eligibility under this

"safe harbor" is the most effective strategy for

minimizing copyright infringement liability, but failing to qualify

for this "safe harbor" does not mean an online service

provider is necessarily liable for infringement as other defenses

(e.g., fair use) may apply.

To help avoid lawsuits involving user-generated content, here

are 10 steps to help online service providers navigate into the

safe harbor provided by Section 512(c) of the DMCA:

1. Designate A DMCA Agent With The Copyright Office

   Designating an agent to receive notices of claimed copyright

   infringement with the U.S. Copyright Office is straightforward

   (mail in/deliver a form which contains identification and contact

   information) and inexpensive ($80 filing fee). The individual

   chosen should be knowledgeable about the DMCA procedures. The DMCA

   imposes brief times to respond to DMCA compliant notices of

   infringement, so consider also appointing an alternate agent who

   has been trained and can act in compliance with the DMCA's

   requirements in the event that the designated agent is temporarily

   unable to do so.

2. Have A Working DMCA Notification System

   Online businesses should include the following information in

   their websites' publicly available terms of use: (i) name and

   contact information of a designated agent to receive notifications

   of claimed infringement and (ii) how and where copyright owners can

   send DMCA compliant notices of claimed infringement.

3. Have A Reasonable Process For Dealing With DMCA Notices

   And Terminate Repeat Infringers

   Adopt, reasonably implement and inform subscribers of a policy

   providing that the company may, when appropriate, terminate the

   accounts of repeat infringers. Create a written policy that sets

   out clear guidelines for suspending and terminating the accounts of

   subscribers who infringe on the company's website and include

   the repeat infringer termination policy in the site's terms of

   use. The DMCA does not state what "reasonably

   implemented" means and a variety of procedures for dealing

   with DMCA compliant notifications are permitted provided

   the service provider (i) terminates users who repeatedly or

   blatantly infringe and (ii) does not actively prevent copyright

   owners from...