Watermaks and DMCA

[skunker]

What is the name of your state? Texas

Divgradcurl,
I was reading this:

Title 17, United States Code, Section 512(c)(1) provides that "a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." A service provider is "a provider of online services or network access, or the operator of facilities therefor" and 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." 17 U.S.C. § 512(k)(1).

Now, does this mean that I can't put watermarks on these images?

 

[FlyingRon]

Not if you want to enjoy the safe harbor. The idea is that the potentially infringing material is done without your intervention.

 

[skunker]

Thanks Ron, I have so many questions, but you and divgradcurl got most of them answered. The last one is...

Does DMCA require that we have the contact info for the person who uploads content on the website?

I ask because I have a website that is about 4 years old with lots of photos on it that I have no idea where they came from. I think, at one point, someone logged into the system and uploaded a ton of them (ww2 photos). I have no record of this since the website has been redesigned and the data (aside from the photos) have been lost.

Thoughts?

 

[skunker]

Not if you want to enjoy the safe harbor. The idea is that the potentially infringing material is done without your intervention.

I know I know you guys hate these types of responses....but sites like youtube, revver, etc all include thier logo/watermark on embedded material that is hotlinked on other sites.

 

[divgradcurl]

I know I know you guys hate these types of responses....but sites like youtube, revver, etc all include thier logo/watermark on embedded material that is hotlinked on other sites.

Youtube has also been sued for copyright infringement. Whether or not it will succeed, we will just have to see.

As always, just because someone else is doing something doesn't mean it is proper, or legal, and will NOT be a defense if YOU are the one that happens to get sued.

 

[divgradcurl]

Thanks Ron, I have so many questions, but you and divgradcurl got most of them answered. The last one is...

Does DMCA require that we have the contact info for the person who uploads content on the website?

I ask because I have a website that is about 4 years old with lots of photos on it that I have no idea where they came from. I think, at one point, someone logged into the system and uploaded a ton of them (ww2 photos). I have no record of this since the website has been redesigned and the data (aside from the photos) have been lost.

Thoughts?

No. There is no requirement to keep the contact info. You might want to in case you were ever to receive a subpoena, but there is no requirement to do so. If you do receive a subpoena, you must comply to avoid liability (see 17 USC 512(h)(5)), but if you don't have information to give, you don't have it. The statute requires you to cough up the information, but does not state that you must keep the information.

 

[skunker]

That's an interesting loophole, though, don't you think? You could delete the person's contact info or do something along those lines to protect someone.

 

[divgradcurl]

That's an interesting loophole, though, don't you think? You could delete the person's contact info or do something along those lines to protect someone.

Unless you get caught doing it. If you do get served with a subpoena, and you don't give up the info they are asking for, you'd better have a really, really good reason -- and supporting evidence -- as to why you don't have the info. If you can prove that the pictures were posted 4 years ago, and you migrated the system 2years ago and lost the info, that might be okay. If you can prove that you only keep info for, say, 6 months, and you have a written policy dated before the subpoena and proof that you followed the policy and deleted info every 6 month or after 6 months, that's probably okay too. If you just decide to randomly delete data, that could (in principle) subject you to criminal sanctions for contempt, or spoiliation of evidence, etc. Also, if they can prove you are deleted this info to protect people, they could potentially pierce the DMCA and come after you directly, because now you are essentially taking an active role in the infringement. It's a big difference legally between "I don't have the records because of some reasonable reason" and "I don't have the records because I deleted them to you wouldn't get them, and the law doesn't require me to keep them." The law may not require you to keep them, but if you do anyway, and then destroy them for the purpose of protecting people, chances are you are going to be the one that needs protection!

Courts generally aren't stupid. What look like loopholes in the law actually aren't in most cases when you look closely at them..