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Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) is a 1998 law intended to update copyright laws as they pertain to the challenges of regulating digital material. Among other things, the DMCA provides certain limitations on liability for online service providers (OSP) for acts of copyright infringement.

Every person who has a website needs to know about copyright laws and DMCA, because you can be held liable for the actions of others when it comes to the content on your website!

Who Should Apply for the DMCA

Essentially, anyone who operates, manages, or hosts a website (including a blog) that allows third party users to upload content qualifies as an online service provider (OSP) and is eligible for protection under the DMCA. This includes any website that allows users to upload media (such as photos or videos), or post comments or reviews.

This is very important, because the definition of "infringement" is very broad. For example, if your website displays copyrighted material, whether you uploaded it there or not, you can be liable. A good real estate example involves websites with IDX data feeds. Say Agent X enters a listing into the MLS, and uploads a copyrighted photo as part of the listing (even though this is against MLS rules). That listing is then syndicated out to hundreds of real estate websites, including Agent Y's personal website which utilizes an IDX data feed for his clients to search for properties. Because that copyrighted photo is now on Agent Y's website, he can be held liable for infringement. As can all the other OSPs displaying that photo. The domino effect to so many because of one person's actions is staggering in this digital age.

Why the DMCA is Important

Under copyright law, knowledge or intent are not relevant for purposes of liability for infringement; so you can be held responsible for copyright infringement even if you have no idea these activities are going on (and, if you have not registered a DMCA agent, even if you take down the offending material immediately after being notified!).

The DMCA is a "safe-harbor," or a written exception to the general rule that an OSP is liable for the acts of infringement its users commit. The DMCA can serve as a defense to liability for copyright infringement by a third party, therefore registering under the DMCA could deter suits against the OSP for infringement.

It is important to note that the DMCA is intended to protect OSPs from inadvertent infringement by third parties, and it does not help in a situation where the OSP itself is accused of infringement (i.e., posting copyrighted content in its own right). Also, the DMCA protects against claims of copyright infringement only, and does not protect against other types of wrongdoing, such as infringements concerning trademarks, claims of defamation, etc.

How to Obtain Protection Under DMCA

1. Designate a copyright take-down agent to receive DMCA takedown notices. A take-down agent is someone registered with the U.S. Copyright Office to receive notifications of claimed infringement on behalf of the OSP. To designate an agent, an OSP must register online with the U.S. Copyright Office and pay a filing fee ($6 per OSP). The website to register is https://www.copyright.gov/dmca-directory.

2. Adopt a copyright infringement policy and notify site users. The OSP must publish a statement on its website to provide notice to the site users of the take-down agent's contact information. This DMCA policy may be included in the site's terms of use/service, or it may be a separate document.

3. Watch for and properly comply with any notice of claimed infringement received. Anyone claiming infringement must provide the OSP a signed written notice. If a takedown notice meets the proper requirements, the OSP should expeditiously remove or disable access to the potentially infringing material. If you are unsure of what the notice or demand letter is alleging, or if you have questions about if, or how, you must comply with a takedown notice, please consult a qualified attorney.

DMCA & Real Estate Brokers

The DMCA provides protection only for OSPs. Unfortunately, the definition of "service provider" is broad, and still evolving. In the case of a real estate company website, the OSP is most likely to be identified as the firm/company name or Principal Broker.

The law is not presently clear if the protection provided to a real estate brokerage firm filing under the DMCA will also extend to its agents that operate completely separate websites, particularly if they are not branded sites of the real estate brokerage firm. Accordingly, it is recommended that any agent that has a website separate from the branded site of its real estate broker file a separate DMCA registration. The more individuals within a collective group that register under the DMCA, the stronger the protection for all involved. And while it is not absolutely clear that a real estate broker can obtain protection for all of its real estate agents even operating under its branded website, it is recommended that the initial filings be made on that basis. Plus, the copyright/DMCA policy on each website may be a powerful deterrent to copyright infringement claims against innocent infringers.

A copyright/DMCA Policy (example of REIN’s Policy here) must be created and adapted for use by each individual brokerage firm and other real estate agents with their own unbranded website(s), to provide notice of the specific individual (take-down agent) to receive the copyright notice and to conform to the practices of each such brokerage firm.

Assistance Filing for DMCA Registration

Any OSP can submit the required documentation and filing fees directly to the U.S. Copyright Office, or consult with an attorney to do so on their behalf. As a service to REIN's members, REIN's legal counsel, Kaufman & Canoles, has offered to assist broker members and/or licensed agents with this process. Provided there is no conflict of interest, Kaufman & Canoles has agreed to register the DMCA Designation of Agent with the U.S. Copyright Office, and adapt the Web Site Copyright/DMCA Policy for REIN's brokers and agents for a flat fee of $100, plus the filing fee ($6 per entity name). The broker/agent must provide all information needed to complete the registration and policy.

If interested, please contact Nicole Harrell of Kaufman & Canoles at (757) 624-3306 or njharrell@kaufcan.com.

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