[Infowarrior] - $105 Fix Could Protect You From Copyright-Troll Lawsuits

[Richard Forno]

The $105 Fix That Could Protect You From Copyright-Troll Lawsuits

	• By David Kravets  
	• October 27, 2010  | 
	• 1:54 pm  | 
	• Categories: Copyrights and Patents, Digital Millennium Copyright Act
	
http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/

Call it ingenious, call it evil or call it a little of both: Copyright troll Righthaven is exploiting a loophole in intellectual property law, suing websites that might have avoided any trace of civil liability had they spent a mere $105.

That’s the fee for a blog or other website to register a DMCA takedown agent with the U.S. Copyright Office, an obscure bureaucratic prerequisite to enjoying a legal “safe harbor” from copyright lawsuits over third-party posts, such as reader comments.

There’s no better time to become acquainted with that requirement.

Founded in March, the Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content of the Las Vegas Review-Journal for the sole purpose of suing blogs and websites that re-post, or even excerpt, those articles without permission. The company has settled about 60 of 160 cases for a few thousand dollars each, and plans to expand its operations to other newspapers across the country.

Many of its lawsuits arise, not from articles posted by a website’s proprietors, but from comments and forum posts by the site’s readers. Under the Digital Millennium Copyright Act, a website enjoys effective immunity from civil copyright liability for user content, provided they, promptly remove infringing material at the request of a rightsholder. That’s how sites like YouTube are able to exist, and why Wired.com allows users to post comments to our stories without fear that a single user’s cut-and-paste will cost us $150,000 in court.

But to dock in that legal safe harbor, a site has to, among other things, register an official contact point for DMCA takedown notices, a process that involves filling out a form and mailing a check to the government. An examination of Righthaven’s lawsuits targeting user content suggests it’s specifically going after sites that failed to fill out that paperwork.

“The DMCA is a good deterrent from being sued,” says Kurt Opsahl, a staff attorney with the Electronic Frontier Foundation, “Complying with conditions of eligibility for the safe harbor is a good thing to do. It probably will prevent somebody from suing you in the first place.”

The EFF is defending political community site Democratic Underground from a Righthaven suit stemming from a user’s posting of four paragraphs from a 34-paragraph Review-Journal story on Sharron Angle, the Republican Nevada candidate for Senate entitled “Tea party fuels Angle.” The brevity of the excerpt, and the fact that the post links back to the original story, gives Democratic Underground a strong fair use defense. But had it registered with the Copyright Office, it wouldn’t even have to make that argument.

Opsahl doesn’t believe any of the sites Righthaven has sued had a designated agent, though not all of the cases involve user posts. (Righthaven did not respond to inquiries for this story.)

If you run a U.S. blog or a community site that accepts user content, you can register a DMCA agent by downloading this form (.pdf) and sending $105 and the form to Copyright RRP, Box 71537, Washington, D.C., 20024.

Opsahl and other experts note that failing to qualify for the DMCA safe harbor still leaves you with fact-based defenses from a lawsuit, including the defense, supported by some case law, that infringing third-party posts aren’t your responsibility.

Ben Sheffner, a Hollywood copyright attorney and the man behind the must-read blog Copyrights & Campaigns, says there is a reason the DMCA demands a takedown agent, which is supported by a recent court ruling.

“The idea is you need to make it easy for copyright owners to locate who you send infringement notices to,” he says. “They shouldn’t have to go hunting around.”