Posted by: Ruth Carter
Disclaimer: I am not a lawyer. I am a law student. In accordance with ABA policy, this blog should not be viewed as legal advice. It is simply my opinions and legal information that is widely available on the internet.
A few weeks ago, the ABA Journal published an article that suggested that bloggers who allow others to post comments on their sites should register with the U.S. Copyright Office for protection under the Digital Millennium Copyright Act (DMCA). Copyright trolls are buying the rights to literary works and then suing anyone who might be infringing.
The DMCA provides a “safe harbor” from liability to website owners who may unknowingly be allowing works that violate another person’s copyright to be posted on their site. To qualify for this protection, each entity must register an agent with the U.S. Copyright Office who can receive notification of the infringing work. As long as the owner removes the work upon learning of the alleged infringement, they are protected against liability.
Let us assume that Joe Average is a man from Wisconsin who likes to spend his weekends fishing. He has a fishing blog to share his fishing exploits that is hosted by Go Daddy. If Joe posts an article from Field & Stream and claims it as his own, Field & Stream could send a take-down notice to Go Daddy to have the work removed. As long as Go Daddy removes the allegedly infringing article after receiving notification, Go Daddy is not liable for any damages.
Why would Joe Average want to spend $105 to be a registered DMCA agent for his own site? There are two situations where Joe might want to protect himself. The first is if Joe owns the blog and multiple people write posts for it. If he has a registered DMCA agent, he will not be liable if one of his writers posts an infringing blog. The other situation relates to the comments that posted on Joe’s blog. A comment could infringe on another’s copyright and Joe would not know about it until he is sued for copyright infringement, which could result in hundreds, if not thousands of dollars in damages. If Joe had a registered DMCA agent, he would only have to remove the allegedly infringing comment upon notification. There is a greater risk that infringement could occur via comments if the blog owner does not moderate the comments that are posted on his site.
There may, however, be situations where the likelihood of infringement occurring is low enough that a blogger would decide that he is will to risk a lawsuit for copyright infringement and save himself the $105 registration fee. If the blog owner is the only person who writes posts for his website and he closely moderates his comments, there may be a low risk that copyright infringement will occur. The risk of infringement drops if the blogger knows the people who leave comments on his site and if their post are based on their personal experiences and opinions.