The music industry came out on top in one of its first attempts to hold an internet service provider liable for its subscribers’ unauthorized peer-to-peer file sharing.

The decision, handed down by the Fourth Circuit Court of Appeals in a dispute between BMG Rights Management and Cox Communications, outlines the obligations an ISP must fulfill to receive safe harbor protection under the Digital Millennium Copyright Act for a subscriber’s infringement. It also explains when an ISP can be held contributorily liable for its subscribers’ actions.

Read my full analysis here.

Last year we covered a wide range of online legal and business subjects intended for readers ranging from Internet entrepreneurs to social media marketers, from online shoppers to e-tailers, from networkers to influencers (and the brands that pay them).

The topics of our blog posts covered a myriad of cutting-edge subjects, including a new federal law limiting a business’s ability to stop patrons from posting negative online reviews and a court opinion that gave online retailers some cause for celebration.

As interesting as those topics are, they weren’t the subjects of Socially Aware’s most widely read articles from last year. Here are the most popular posts that appeared on Socially Aware in 2017.

  1. Second Circuit Clarifies “Repeat Infringer” Policy Requirement for DMCA Copyright Safe Harbors
  2. N.Y.’s New Cybersecurity Regulations: What Financial Services Companies Need to Know
  3. The Hague District Court’s WhatsApp Decision Creates Concerns for Mobile App Developers
  4. Google Ordered to Comply with Warrant for Foreign-Stored User Data
  5. Limiting Statutory Damages in Internet Copyright Cases
  6. Court Orders Google to Turn Over Foreign-Stored Data
  7. Zazzle Fizzles: Website Operator Denied Copyright Safe Harbor Protection for Its Sale of Physical Products Featuring User-Generated Images
  8. Delaware Paves the Way for Blockchain Technology
  9. Brands Beware: FTC Continues Campaign on Social Media Influencer Disclosures
  10. FTC Report Reinforces the Rules for Cross-Device Tracking

In the classic rock song “Light My Fire,” ‘60s icon and the Doors’ lead singer Jim Morrison sang, “The time to hesitate is through.”

If your company operates a website or blog that hosts user-generated content, and has yet to register an agent for receipt of copyright infringement notices under the U.S. Copyright Office’s new agent designation system, it’s time to light a fire. Failure to do so could significantly increase your company’s copyright liability exposure in connection with such hosted content.

Here’s what you need to know:

Under the Digital Millennium Copyright Act’s (DMCA) Section 512(c) safe harbor, website operators and other online service providers that comply with the eligibility requirements are shielded from copyright damages in connection with their hosting of infringing content uploaded by service users.

This powerful safe harbor has played a major role in the success of Facebook, Instagram, YouTube and other U.S. social media and Internet sites. But it also protects brands that host on their websites text, photos and videos uploaded by their customers. Continue Reading If Your Company’s Website Hosts User-Generated Content, Stop and Read This Post!

We discussed last year the trend toward companies seeking to monetize user-generated content. A recent Central District of California decision in Greg Young Publishing, Inc. v. Zazzle, Inc. serves as an important reminder of the serious risks that can arise from seeking to commercially exploit such content.

Under the Digital Millennium Copyright Act’s (DMCA) Section 512(c) safe harbor, online service providers that comply with the eligibility requirements are shielded from copyright damages in connection with their hosting of infringing content uploaded by service users. This powerful safe harbor has played a major role in the success of Facebook, Instagram, YouTube and other U.S. social media and Internet sites.

Continue Reading Zazzle Fizzles: Website Operator Denied Copyright Safe Harbor Protection for Its Sale of Physical Products Featuring User-Generated Images

With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate the good from the bad so that we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic, or otherwise of little interest to site visitors. And these sites often find that humans—typically passionate volunteers from the sites’ user communities—are better than algorithms at sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to consider potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (the DMCA) to the success of YouTube, Facebook and other online platforms that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?

GettyImages-183313080With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate good content from bad content so we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic or otherwise of little interest to site visitors. And these sites are often finding that humans—typically passionate volunteers from these sites’ user communities—do a better job than algorithms in sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to worry about potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (DMCA) to the success of YouTube, Facebook and other online sites that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?

GettyImages-525955707-600pxThe Fifth Circuit Court of Appeals recently considered in BWP Media USA, Inc. v. T&S Software Associates, Inc. whether volitional conduct is required to establish a claim for direct copyright infringement against an Internet service provider (“ISP”). The defendant ISP, T&S Software Associates (“T&S”), hosted a website that included a public forum called “HairTalk” where users could post content about hair, beauty, and celebrities.

HairTalk users posted photographs of Ke$ha, Julianne Hough, and Ashlee Simpson that were owned by the plaintiffs, BWP Media USA and National Photo Group (“BWP”), without BWP’s authorization. The plaintiffs sued T&S for direct and secondary copyright infringement based on the users’ posts. The district court granted summary judgment in favor of T&S as to both direct and secondary infringement and BWP appealed the judgment as to the direct infringement claim. Continue Reading 5th Circuit: ISP Not Liable for Infringement Due to Lack of Volitional Conduct, Despite Ineligibility for DMCA Safe Harbor

03_April_SociallyAware_thumbnailThe latest issue of our Socially Aware newsletter is now available here.

In this edition, we explore the threat to U.S. jobs posed by rapid advances in emerging technologies; we examine a Federal Trade Commission report on how companies engaging in cross-device tracking can stay on the right side of the law; we take a look at a Second Circuit opinion that fleshes out the “repeat infringer” requirement online service providers must fulfill to qualify for the Digital Millennium Copyright Act’s safe harbors; we discuss a state court decision holding that Section 230 of the Communications Decency Act immunizes Snapchat from liability for a car wreck that was allegedly caused by the app’s “speed filter” feature; we describe a recent decision by the District Court of the Hague confirming that an app provider could be subject to the privacy laws of a country in the European Union merely by making its app available on mobile phones in that country; and we review a federal district court order requiring Google to comply with search warrants for foreign stored user data.

All this—plus an infographic illustrating how emerging technology will threaten U.S. jobs.

Read our newsletter.

GettyImages-whitebackground_514259478-[Converted]Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago seeking to balance the needs of two factions: Content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of their customers.

For the Internet companies, Congress offered relief by creating a number of “safe harbors” shielding such companies from copyright-related damages arising from their customers’ infringing activities.

In particular, the DMCA established four distinct safe harbors for online service providers, each safe harbor aimed at a different type of online activity (i.e., transitory digital network communications; system caching; online hosting; and provision of information location tools) and each with its own set of eligibility requirements.

To qualify for any of these DMCA safe harbors, however, the DMCA requires that service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”

Despite the threshold importance of repeat infringer policies, the DMCA left many questions unanswered. Who exactly counts as an “infringer”? Does it include every user accused of infringement or only those found culpable in court? If it’s somewhere in between, what level of proof is required before a service provider is required to take action? Can the repeat infringer policy differentiate between those who upload infringing content for others to copy and share and those who only download such content for their own personal viewing? And how many acts of infringement does it take to become a “repeat infringer” anyway? Continue Reading Second Circuit Clarifies “Repeat Infringer” Policy Requirement for DMCA Copyright Safe Harbors

3D rendering of Copyright Symbol made of transparent glass with Shades and Shadow isolated on white background.

If your company operates a website or blog that hosts user-generated content, you’ll want to read this post carefully.

We’re ringing the alarm bell on an important new U.S. copyright law development that, if ignored, could significantly increase your company’s potential liability exposure in connection with user-generated content.

If your company hosts user-generated content, such hosted content may include materials that were posted without the permission of the owners of the copyrights in such materials—potentially subjecting your company to copyright infringement liability.

For nearly two decades, however, Section 512(c) of the U.S. Copyright Act, enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA), has provided a safe harbor insulating online service providers from monetary damages for hosting copyright-infringing materials posted by their users. To receive protection under the Section 512(c) safe harbor, service providers must, among other things, designate an agent to receive notifications of claimed infringement with the Copyright Office. Continue Reading New Copyright Office Rule Creates Potential “Gotcha” for Blogs and Websites Hosting User-Generated Content