Does the Digital Millennium Copyright Act protect digital publishers?

The internet has has a profound impact on a number of industries. One of the industries that has been profoundly affected by the internet is journalism. In the past media companies that publish news and entertainment would have a dedicated staff of journalists to write and publish articles. Now it is becoming more and more common for media companies to have independent contractors contribute articles for publication. Independent contractors write articles on a contractual basis and are not employees of the company. Some media companies have no journalist employees and all of the articles that they publish are written by independent contractors.

Companies are typically liable for torts committed by employees of the company. So if an employee of a media company committed copyright infringement in the course of carrying out their job, the company could be held liable for that copyright infringement. For instance if an employee of a media company copied an article or photograph which was distributed by the media company, the copyright owner could sue the media company and the media company could be held liable for the copyright infringement. The media company may have a defense, such as fair use, but for the purpose of this blog post we will just focus on who can be held liable for copyright infringement.

In the case of a media company that employees independent contractors, can the media company be held liable for copyright infringement committed by independent contractors? That question was asked in BWP Media USA Inc. v. Clarity Dig. Grp., LLC, No. 14-cv-00467-PAB-KMT, 2015 WL 1538366 (D. Colo. Mar. 31, 2015). The 10th Circuit Court affirmed the decision of the district court which held that media company was protected from copyright infringement liability by the safe harbor provision of the Digital Millennium Copyright Act.

How did the court come to this conclusion?

First – The court noted that Section 512 of the Digital Millennium Copyright Act contains a safe harbor provision protecting online and internet service providers from monetary liability, only allowing for limited injunctive relief, when copyright infringement occurs through use of the service. 17 U.S.C. § 512(c). The court noted that To benefit from safe harbor protection, the ISP must first show that the infringing content was stored “at the direction of a user.” 17 U.S.C. § 512(c)(1). To maintain the safe harbor protection the internet service provider must not know about the copyright infringement and must remove the content when the internet service provider learns of the copyright infringement.

Next the court reviewed the facts in the case. The court noted that the media company accused of copyright infringement used independent contractors to generate articles. The independent contractors were responsible for generating articles and uploading the articles to the media company’s website. In the contract between the media company and the independent contractors, it was explicitly stated that copyright infringement by the independent contractor was not acceptable to the media company. And when the media company learned of articles submitted by independent contractors that had copyright infringement issues, those articles were removed from the media company’s website.

Finally the court applied the law to the facts in the case. The court held that because the articles were uploaded to the media company’s website at the direction of the independent contractors and because the media company did not have knowledge of the infringement, the safe harbor provision of the Digital Millennium Copyright Act protected the media company from liability for copyright infringement.

The safe harbor provision of the Digital Millennium Copyright Act is a complex. If you have questions about it you should consult with an attorney that familiar with copyright law.