Avoiding Liability Resulting from “Cool Websites” through Good DMCA Hygiene and ADA Compliance Review:

Avoiding Liability Resulting from “Cool Websites” through Good DMCA Hygiene and ADA Compliance Review:

Chapter 1: “And It’s Such a Cool Website!”

It was a sunny Friday, and I was about to put on my mask to leave the building for the weekend when the phone rang. I picked it up.

There was an excited voice on the phone: “Hi! I called the main desk and I have a legal problem with my website, and they told me I should call you. Can you help?”

“Maybe,” I said. “Can you tell me your name and business?”

“Yeah. Thanks. My name is Carl Content. I started a humor website called, ‘Copyable Comix.’ I just launched it last week. I have users who upload comics or jokes and then folks looking for content can upload the content. I’m also working on a mobile app. Certain parts of the website require a subscription and certain parts are sold by the upload. When people put content on the website, they have to click on a form that says that they are the original creator of the content before I give them a license to download. Got it?” Carlos asked.

“Yeah,” I said, “I think I know what’s coming.”

“You do? What do you mean?” Carl asked.

“Well, I would guess that you let the content providers upload whatever they put on your website as soon as they hit the click license. But you have no way of verifying whether they are really providing you with original content. So, your website is probably stuffed with content that was taken from third-party websites, books, magazines, newspapers… whatever. So, eventually the actual authors of these materials or their agents find out about that and they start sending you really scary letters that you have infringed their copyrights. That would be the first part of your problem.”

“Next, some of the users who have uploaded your content may have reused that material by reposting it on their websites or third-party sites. And, in turn, they are receiving notices that they are infringing the copyrights of the authors and they are turning around and threatening you with all kinds of stuff, including copyright infringement. And, Carl, copyright damages could include payment of your opposing party’s attorneys’ fees and those are nasty, federal claims. You’re probably also being accused of consumer fraud claims, and other deceitful actions. So, my guess is that right now, you are getting it from all sides. And it will probably get worse.”

The line went dead for a few seconds. “Are you there?” I asked.

“Yeah, how did you know all this? Does this happen a lot? It’s not fair. How was I supposed to know that some of my customers would lie? And it’s such a cool website!”

Chapter 2: Sailing Into the DMCA’s Safe Harbor:

“What should I do?” Carl asked.

I took a deep breath. “We have a lot of work to do. The first thing we need to do is write a response to everyone who is ready to sue you and and try to chill them out before you get sued. We might decide to stop the website’s operation for a day or two while we make some repairs to your website. The next thing we need to do is immediately relaunch your website with the right User Agreement so that we can steer your website into the safe harbor of the Digital Millennium Copyright Act, the DMCA.”

“The what?” Asked Carl.

“The DMCA is a federal law that provides businesses like yours with a “safe harbor” if material is posted by third-parties on your website that infringes the rights of legitimate copyright owners. So, if your website or mobile app allow users to post content of any kind … in your case, comics, and jokes, you have a pathway to avoid liability as long as you follow certain processes when you receive intellectual property claims from third parties.”

“How does that work?” Carl asked.

“It’s a bit complicated but, essentially:

  • You select a ‘DMCA Agent (it could be you or a third party but it has to be properly registered with the US Copyright Office).
  • You tell your users that if they have claims regarding unauthorized intellectual property on your site, they should send them to the DMCA Agent.
  • Then there is a procedure for notices and counternotices but if you play the procedure out and follow the rules, then the website will have no liability for posting the material. The website will be the “safe harbor” of the DMCA.”

Chapter 3: And They Almost Lived Happy Ever After:

“That sounds great,” said Carl. “How much will it cost for you to review my User Agreement and get me into that Safe Harbor?”

I said, “Carl, every website is a bit different but, typically, somewhere between 3 and 5 hours of lawyer time, including checking other compliance issues.”

“Huh?” Said Carl. “You mean there are other compliance issues?”

“Well, yeah, Carl. For example, is your website ADA Compliant? ADA stands for ‘Americans with Disabilities Act.’ For example, people with sight impairment use software to “read” your website to the user and you need to make sure that your website works in those cases. Some courts have held that websites must comply with the ADA and, honestly, it’s not clear what courts will ultimately decide but it is pretty easy to assess your website, check its compliance with the ADA, and let your IT people make any necessary changes.”

The line went silent again.

“You still there, Carl?”

“Yes.” Carl said. “OK. Sign me up and let’s get this fixed. Let me give you the URL for the Copyable Comix. Check it out after we get off the phone, OK? I mean, it’s really a cool website.”

By Arthur Chaykin, Kennyhertz Perry, LLC

Arthur Chaykin is head of Kennyhertz Perry’s Intellectual Property practice. He was formerly a Vice-President of Law at the Sprint Corporation where he served as, in succession, their chief litigator, the head of the business law department, and Vice President of the first legal department at Sprint supporting marketing and sales in all areas of Sprint’s business: international, wireless, wireline, local and long-distance services. At Sprint, he also served as the head lawyer for Sprint Ethics and Compliance program. He has since served as General Counsel to a major manufacturer and distributor of automotive lifting equipment and automotive accessories and has represented numerous clients on trademark matters, copyright cases, trade secrets disputes, food safety regulatory issues, and consumer product safety issues. has over 35 years of legal experience handling trademark, patent, copyright, and trade secret litigation and arbitration.

To learn more about Kennyhertz Perry, LLC, please visit kennyhertzperry.com.

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