Intellectual Property | Real Estate | Technology | Software

Why you should have a law firm serve as your DMCA Agent!

May 22nd, 2015 | By | Category: Copyright Litigation

Copyright Infringement Attorney Service – DMCA Agent

Internet lawyer for DMCA agent

Introduction

If your website allows any third party content to be posted on your website you need to think about having a DMCA agent registered for your business.  There are many benefits to having a law firm serve this function.  This blog discusses our DMCA agent service for online service providers, social media networks, commercial website operators and others.  For many companies having “safe harbor” protections will be the difference between being able to easily run your website or social media network with minimal amount of disruption and limited legal exposure, versus dealing with copyright infringement shakedown on a routine basis.  We can help with any legal issues that arise with your digital business, or online database including contracting, licensing, take-down notices, cease and desist letters, drafting and reviewing terms of use and privacy policies and other business and technology law issues.

Risks of Copyright Infringement

As a law firm that handles copyright infringement cases, we see the monetary damage requests that can be generated from simple claims of copyright theft (including pictures, software, videos, lyrics, jingles and other user generated content).  Suffice it to say you can easily get legal demands in excess of a quart of a million dollars for what would appear to be simple infringements.  The internet is the wild, wild, west of old, and is fraught with pitfalls and dangers for the company that doesn’t take copyright law serious.  Having an internet lawyer assist you in protecting your business from legal liability for copyright holders (who often become copyright “bullies” waiving around claims of “willful copyright infringement” on almost every single phone call we have ever had – we usually need to tell them to “relax” at this point, but nevertheless, copyright holders and owners tend to be very protective and to get very aggressive when they believe their work is being used for a commercial purpose without any gain to them.  This is where the “take down” notices start flying.  For most companies, they want an intellectual property law firm handling and monitoring this dispute process.

Watch Attorney Steve explain our DMCA agent service for online service providers

Law firm for DMCA copyright notices

Bonus materials:  Click on the picture to watch a video which explains our business law services that seeks “safe harbor” against claims of federal copyright infringement.  Make sure to CLICK ON THE RED “V” to subscribe for FREE business and real estate law video updates straight to your desktop!

Does my company qualify as a “service provider” under the DMCA?

According to Copyright.gov:

Definition: For purposes of section 512(c), a “service provider” is defined as a provider of online services or network access, or the operator of facilities therefor, including an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

Some online business entrepreneurs may ask if they are able to reap the benefits of online liability protection for possible infringing works that may be posted to their website by themselves, their customers, their agents, salespersons, or other third parties.  The DMCA is not perfectly clear on this point and the definitions should be reviewed closely.  Here is what the DMCA says:

The DMCA includes two definitions of the term “service provider:”
(A) As used in subsection (a), the term ‘service provider’ means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than in subsection (a), the term ‘service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

This seems to suggest that any website that has a user sign up ability would probably qualify and any website that allows a user to post any type of content would also likely qualify.  In one federal copyright case the Court discussed the website Photobucket.  In this case the court noted:

“To qualify for the “safe harbor” provisions under the DMCA, a party must meet certain threshold requirements, including that the party:
(1) must be a “service provider” as defined by the statute;
(2) must have adopted and reasonably implemented a policy for the termination in appropriate circumstances of users who are repeat infringers; and
(3) must not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works. Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1099 (W.D.Wash.2004), overruled on other grounds, Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612 (9th Cir.2010); Io Grp., Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132, 1142–43 (N.D.Cal.2008).
Photobucket meets the applicable definition of a “service provider” under the DMCA.  This is a threshold question, and many companies would probably rather be “safe” (i.e. try to qualify for the safe harbor just in case a copyright troll comes calling) as opposed to not having any protections and having to deal with a claim for monetary damages with the risk of a copyright lawsuit being dangled by an aggressive intellectual property lawyer.  See Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 743 (S.D.N.Y. 2012) aff’d sub nom.Wolk v. Photobucket.com, Inc., 569 F. App’x 51 (2d Cir. 2014).

Liability protection under DMCA is intended to be “broad”

As the federal Court noted in the Kodak case:
“The DMCA’s definition of “service provider” is intended to encompass a broad set of Internet entities. See Corbis, 351 F.Supp.2d at 1100 (“This definition encompasses a broad variety of Internet activities.”). Courts have found services similar to Photobucket, such as Youtube.com and Veoh.com, to be “service providers” under the DMCA. See Viacom Int’l, Inc. v. YouTube, Inc., 718 F.Supp.2d 514, 518 (S.D.N.Y.2010); Io Grp., 586 F.Supp.2d at 1143. Because Photobucket offers a site that hosts and allows online sharing of photos and videos at the direction of users, Photobucket, like YouTube.com or Veoh.com, qualifies as a “service provider” under § 512(k)(1)(B).
Again, if your business is doing online fan engagement, offering social media profiles, allowing users to post content you should seriously consider creating a DMCA policy for your website and designating an agent with the U.S. Copyright Office.
Are there any legal limits on safe harbor protections?
Yes.    As the 9th circuit court of appeals held in UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1020 (9th Cir. 2013):
“Under § 512(c)(1)(A), a service provider can receive safe harbor protection only if it:
“(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;”
“(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or”
“(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.”

Why hire a law firm to serve as your DMCA agent?

We are trained in the legal process and we have studied and understood the DMCA case law and we are trained to respond to copyright bullies (realize I do not use this term pejoratively, but just to characterize this as the attitudes we often run across).  Copyright holders have legitimate legal rights in their copyrighted works and we respect that.  That being said, we are trained to deal with them, and to document the dispute and work with our clients to get any legal issues resolved in a timely manner so as to avoid triggering a copyright infringement lawsuit that will not only put you into federal court, but could put the reputation of your company at risk, not to mention jeopardizing the financial future of your company.  Do you really want to trust this process to a non-attorney DMCA agent?  It’s an important question.  Do you want to take time out from running your real estate or other business and try to make sure you are properly handling and investigating the claim of infringement?  We can do this for you.  We have handled numerous copyright infringement demands and are able to negotiate settlements without the need to go to federal courts in most cases.  Contact us to discuss your business and your needs.  You can call us or fill out the contact form below.

General Pricing for our Law Firm DMCA Agent Service

1.  Basic setup fee is $695.  This allows us to review your policies and make sure your DMCA policies are proper.  We can draft the document if you do not already have one.

2.  We charge a $200 annual service fee to register and be maintained as your DMCA agent.  Client pays the filing fees (currently $105 plus $35 for extra domains).

These charges must be paid in advance.  So for just $895 you can get setup and sleep at night knowing you have an intellectual property law firm guarding the gates.

3.  Responses to Notices of Claimed Infringement – We review and forward all new Copyright and Trademark disputes and infringement claims made against your website to the owner of the company.  We discuss appropriate responses with you where federal copyright or trademark law is at issue.   In some cases, various state law claims may be at issue (ex. right of publicity take down notices).  We can advise on Arizona and California legal issues but may have to defer you to local counsel where other state law claims are being asserted by a complaining party.

Fee for review and consultation: while our normal legal consultation rate is currently $295-$395/hour (depending on the type of case), for our DMCA services clients we offer a REDUCED ZipCounsel rate of $125 per hour for discussing the take down notices received and bill our time on each case as may be needed.

Benefit: At the end of the day, this is a cost-effective way to protect your company from the legal exposure and risks that can arise in the course of operating your website.  Note: DMCA litigation charges are provided at our normal hourly rate and not the ZipCounsel rate as litigation cases cannot be provided at the promotional rate of $125/hour.  Since the penalties of copyright infringement (actual, statutory, punitive, attorney fees, etc.) and being deemed to “contribute” to copyright infringement being a SERIOUS RISK to your future with the explosion of digital contact such as songs, movies, lyrics, photographs, and all other types of copyrighted content, our DMCA agent service is here to help you address and minimize your legal exposure.

Copyright law resources

  1.  U.S. Copyright Office Agent Designation Form
  2.  Vondran DMCA agent video
  3. Overview of DMCA law
  4. Copyright holders must consider “fair use” factors
  5. DMCA case law

Also, make sure to check out our Copyright Litigation page.

Speak with an Internet & Intellectual Property Lawyer

To discuss your companies needs in the area of DMCA agent and safe harbors, please contact us at (877) 276-5084. We are happy to speak with you.  You may also fill out the contact form if you are ready to get started and we can send you a retainer agreement that spells out all the terms (our email address is posted on the right hand side of this page).  We look forward to working with you.  Please note this is a federal DMCA service only, and we do not handle individual state law issues outside of AZ and CA.

 

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, Autodesk licensing, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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