A new federal case has found that an online platform is not liable for the infringement committed by a third party. This is true even if the website or platform has not taken the proper steps to obtain “Safe Harbor” protection available to them in the Digital Millennium Copyright Act (DMCA).
In BWP Media USA, Inc. v. T&S Software Associates, Inc., 2016 WL 1248908 (N.D. Tex., March 25, 2016), the court found that the forum board operator was not directly and vicariously liable for copyright infringement.
The Copyright law ordinarily would have the bulletin board liable if it profited off of the infringement but the court found that simply having banner or affiliate ads or links based on traffic on the website is NOT sufficient to show direct benefit from the infringing item.
Also, usually, a bulletin board or other online platform or blog could get the Safe Harbor protection if it (1) provided appropriate information in the platform’s terms of service about how to provide notice and take down request; (2) employs internal processes to handle take down requests and boots repeat infringers; (3) has a plan to seal with counternotifications, and (4) designates an agent with the Copyright Office to receive take down notices. Doing these steps would give the online platform an affirmative defense if sued.
That’s a lot of steps for an independent website owner or blogger. This case is a win because it finds that even if those steps weren’t taken, the platform owner can still benefit from the affirmative defense!
You should try to take the above steps if possible and get a lawyer or contact the Copyright Office for guidance, but in the meantime, know that you may have some protection, even though this is a federal court in Texas case.
This case creates a precedent that other courts in other states will likely follow or consider.
Jay Jay Ghatt is also editor at Techyaya.com, founder of the JayJayGhatt.com and JayJayGhatt.com where she teaches online creators how to navigate digital entrepreneurship and offers Do-It-For-You Blogging Service. She manages her lifestyle sites BellyitchBlog, Jenebaspeaks and JJBraids.com and is the founder of BlackWomenTech.com 200 Black Women in Tech On Twitter. Her biz podcast 10 Minute Podcast is available on iTunes and Player.fm. Follow her on Twitter at @Jenebaspeaks. Buy her templates over at her legal and business templates on Etsy shop!