Here’s another entry for the Excuses, Excuses series, listing common excuses asserted in response to being caught infringing a photographer’s copyrights::
12. I didn’t post the photo on my website so I’m protected by the DMCA.
Many websites allow users to submit photos to be posted or to post them directly. So a website owner often will rely on the Digital Millennium Copyright Act (DMCA) for protection when accused of copyright infringement.
Enacted in 1998, the DMCA implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which is applicable here.
The DMCA states that a service provider (website owner) is not liable for the storage of a copyrighted work on a system or network controlled or operated by or for the service provider that was caused by a user of the website if the service provider removes the material from the website after it receives proper notice. But to avoid liability for the infringement, the DMCA also requires that the service provider:
(A) (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;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement, responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
In addition, and where many website owners fail to get the protection of the DMCA, the service provider must have a designated agent to receive notifications of claimed infringement, by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights maintains a current directory of agents available on its website.
If the website owner doesn’t meet all of the above conditions, then the website owner is not eligible for the DMCA’s protection and is liable for the copyright infringement.
For easy reference, all excuses posted so far are included in one document called “Excuses, Excuses” for your easy reference, which will be updated as additional excuses are posted.