Copyright Best Practices & DMCA
The information below can help you protect your business from potential lawsuits regarding copyright infringement, which is a hot industry topic unlikely to go away anytime soon. The Austin Board of REALTORS® wants to help you ensure you're taking full advantage of the Digital Millennium Copyright Act (DMCA) "safe harbor" provisions. Please read the information below and follow the DMCA Agent registration and notice steps below.
NOTE: This is not intended to replace sound legal advice. You should consult your own attorney to determine whether the following information is applicable to your business operations.
What is the Digital Millennium Copyright Act (DMCA)?
From NAR: The Digital Millennium Copyright Act (DMCA) is a federal copyright law that enhances the penalties for copyright infringement occurring on the Internet. The law provides exemptions or “safe harbors” from copyright infringement liability for online service providers (OSP) that satisfy certain criteria. Courts construe the definition of “online service provider” broadly, which would likely include MLSs as well as participants and subscribers hosting an IDX display..
One safe harbor limits the liability of an OSP that hosts a system, network or website on which Internet users may post user-generated content. If an OSP complies with the provisions of this DMCA safe harbor, it cannot be liable for copyright infringement if a user posts infringing material on its website. This protects an OSP from incurring significant sums in copyright infringement damages, as statutory damages are as high as $150,000 per work. For this reason, it is highly recommended that MLSs, participants, and subscribers comply with the DMCA safe harbor provisions discussed herein.
More information can be found in this brief NAR video discussing the topic:
Steps to File Your DMCA Agent
- Post the DMCA Notice on your website (see below to copy/paste).
- As part of your site's DMCA Notice, you will need to designate an agent with the Copyright Office. This agent will be the point of contact for any potential copyright infringement notices. Click here to create an account and register an agent with the Copyright Office.
- On that page, click the "Not Registered? Register here." link
- You will enter the information required for your Primary designated agent; you will also be required to enter information for a secondary agent.
- Once you submit that information, the primary contact will receive an email with instructions on how to activate his or her account.
- Once the account is activated, you will be able to complete the DMCA designated agent registration process.
- Note: there is a small fee when you register your designated agent.
Post This DMCA Notice on Your Website
Copy and paste the following notice, or something substantially similar, on your website. This is a crucial part of taking advantage of the safe harbor provision. We recommend creating a new page that contains this full information; view the ABoR.com DMCA Notice page as an example.
Note: update the bolded fields below with the proper information for your company/designated agent.
COMPANY DMCA POLICY TO ADDRESS COPYRIGHT CLAIMS
There are multiple ways to have your content removed from COMPANY websites or databases.
For takedown notices based on alleged copyright infringement of your content on a COMPANY website (and for counter-notices), please send a valid DMCA notice (or counter-notice) according to the procedures described in this Policy by e-mail to: MAILTO:DESIGNATED AGENT EMAIL.
Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Copyright-infringing materials found on any COMPANY website or database can be identified and removed via COMPANY's DMCA compliance process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that COMPANY or any COMPANY EMPLOYEES have infringed your copyright(s), you can request that we take down the infringing material(s) by following the steps in this DMCA compliance process. Please note that we do not make any legal decisions about the validity of your claim.
When a clear and valid Notice is received pursuant to the guidelines set forth below, we will respond by either taking down the allegedly infringing content ("Allegedly Infringing Content") or blocking access to it. We may contact the Notice provider to request additional information.
Under the DMCA, we are required to take reasonable steps to notify the person or entity who posted the Allegedly Infringing Content ("Alleged Infringer"). The Alleged Infringer is allowed under the law to send us a counter-notification as instructed below ("Counter-Notice"). On receiving a Counter-Notice, we may restore the Allegedly Infringing Content unless we receive notice from the original Notice provider that a legal action has been filed seeking a court order to restrain the Alleged Infringer from engaging in the allegedly infringing activity.
Anyone making a false or fraudulent Notice or Counter-Notice may be liable for damages under the DMCA, including costs and attorney's fees. If you are unsure of whether certain material infringes your copyright, contact an attorney.
a. Filing a DMCA Notice
To file a DMCA Notice with COMPANY, you must send us a written letter by fax, regular mail or email. We reserve the right to ignore a Notice that is not in compliance with the DMCA.
Your Notice must:
- Identify specifically the copyrighted work(s) you believe has/have been infringed (for example, "My copyrighted work is an image that appears at [list URL where material is located].");
- Identify the Content that you claim is infringing on your copyrighted work. You must provide information reasonably sufficient to enable us to locate the item on the website. You should provide clear screenshots of the Allegedly Infringing Materials (this is for identification purposes only, not to "prove" your claims). The information provided should be as detailed as possible;
- Provide information sufficient to permit us to contact you directly: your name, street address, telephone number, and email (if available);
- If possible, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
- Include the following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.";
- Include the following statement: "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.";
- The Notice must be signed;
- The Notice must be sent to our DMCA designated agent at the following address:
DMCA Designated Agent
Designated Email Address
b. Filing a Counter-Notice
If your material has been removed or blocked by us as a result of a DMCA Notice, you may send us a Counter-Notice pursuant to Sections 512(g)(2) and (3) of the DMCA asking for the Allegedly Infringing Material to be restored. To file a DMCA Counter-Notice with us, you must send us a written letter by fax, regular mail or email.
When we receive the Counter-Notice, we will send a copy of the Counter-Notice to the party who originally requested the removal of the Allegedly Infringing Material and we will reinstate the Allegedly Infringing Material, unless that party obtains a court order supporting removal of the Allegedly Infringing Material. We reserve the right to ignore a Counter-Notice that is not in compliance with the DMCA.
Your Counter-Notice must:
- Describe and list all material(s) that were removed by COMPANY and the location at which the material(s) appeared before it/they was/were removed. Please provide the specific profile or other unique identifying information so that we may have reasonably sufficient information to identify the item(s). The information provided should be as detailed as possible;
- Provide your name, address, telephone number and email address (if available);
- State that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located (or Travis County, Texas if your address is outside of the United States);
- State that you will accept service of process from the person (or an agent of such person) who provided the DMCA Notice to us.
- Include the following statement: "I swear under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
- The Counter-Notice must be signed.
- The Counter-Notice must be sent to our DMCA designated agent at the following address:
DMCA Designated Agent
Designated Email Address