One of the first questions any Webmaster setting up a TGP or Picture Post site usually wants answered is: Can I be held accountable for posts made by other Webmasters which include materials that infringe on someone’s intellectual property rights? To answer this question, attorney Anthony Comparetto takes a look at the Digital Millennium Copyright Act and analyzes how it relates to TGP and Picture Post sites.
I was recently asked to do a legal review and offer an opinion on the effects of the Digital Millennium Copyright Act (DMCA) as it relates to Thumbnail Gallery Post (TGP) and “Picture Post” Web sites.One of the first questions any Webmaster setting up a TGP or Picture Post site usually wants answered is: Can I be held accountable for posts made by other Webmasters which include materials that infringe on someone’s intellectual property rights? To answer this question, attorney Anthony Comparetto takes a look at the Digital Millennium Copyright Act and analyzes how it relates to TGP and Picture Post sites.
I was recently asked to do a legal review and offer an opinion on the effects of the Digital Millennium Copyright Act (DMCA) as it relates to Thumbnail Gallery Post (TGP) and “Picture Post” Web sites. (If you do not understand what the DMCA is, you can view a streaming video explaining it at www.adultsitelaw.com.) Specifically I was asked the following questions:
Question: Is a TGP or Picture Post considered a “service provider” under the DMCA?
The broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction Web sites. “Information Location Tools” refers to services such as search engines, directories, or pages of recommended Web sites, all which provide links to potentially infringing materials: a TGP would fall under this category.
Question: What does a TGP or Picture Post have to do in order to qualify for safe harbor protection under the DMCA?
A TGP must follow the proper notice and takedown procedures outlined by DMCA and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.
In order to facilitate the notification process in cases of infringement, a TGP service must designate an agent that will receive notices from copyright owners in the case that the TGP site contains materials that infringe on intellectual property rights. In addition, the TGP must notify the Copyright Office of the agent’s name and address, and make that information publicly available on its Web site.
Finally, TGP operators must not have knowledge of the fact that infringing materials exist on their network. If they do discover such material before being contacted by the copyright owners, they are instructed to remove the material themselves. The TGP must not gain any financial benefit that is attributable to the infringing material.
Question: If a hyperlink is just a location pointer, how can it be illegal?
A few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material.
Question: Does a TGP have to notify its users about its policies regarding the removal of copyrighted materials?
Yes, in order to qualify for exemption under the safe harbor provisions, the TGP must give notice to its users of its policies regarding copyright infringement and the consequences of repeated infringing activity. The notice can be a part of the contract signed by the user, or it can be some other method that explains the terms of use of the TGP. While there are no specific rules about how this notice must be made, it must be “reasonably implemented” so that subscribers and account holders are informed of the terms.
Question: How can I, as a TGP, be held liable for the copyright infringement of a post made by another Web site?
Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site. Under the doctrine of contributory infringement you may be liable if you make a material contribution — actual assistance or inducement — to the alleged piracy.
Posting pictures or links or other tools to assist in accessing the illegal material may subject you to liability. Providing a forum for uploading and downloading any copyrighted file may also be contributory infringement. Even providing assistance or supporting a forum in which others may provide assistance in locating illegal materiel, links to download sites, server space, or support for sites that do the above may constitute contributory infringement.
If you are a content producer who has found that your content has been stolen you can find the necessary form for this DMCA violation at www.adultsitelaw.com.
So as you can see, the DMCA is a draconian law with horrible repercussions. Recently, notices of DMCA violations have started making the rounds at both adult Web sites and hosting companies. TGP posts and hosting companies should make themselves very aware of all aspects of this law and how to comply with it.
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A.J. Comparetto is a guest writer for The ADULTWEBMASTER Magazine. He has been an attorney practicing Internet and entertainment law for over 12 years. For more information or to ask questions, email him at ajc111@attorney.com, call him at 727.328.7\’00, or visit him on the Web at www.adultsitelaw.com.
