Is your grid a safe harbor?

One of the things every grid owner should be concerned with is the possibility that one of the grid’s users will be using, selling or transferring content that infringes upon another’s copyright. While both technological measures and contractual limitations can be utilized, the fact remains that neither of them  can ensure the grid owner will be safe from liability for infringing activities. A legal problem needs a legal solution. Fortunately, Title 17 U.S.C. § 512 provides one.

(Image by TrevorC via Flickr.)

Better known as the safe harbor provision of the Digital Millennium Copyright Act (DMCA), §512 provides a mechanism whereby “service providers” can avoid liability for transmitting, storing or hosting materials which infringe someone’s copyright. While virtual worlds are not specifically identified as service providers under the law, the definition is arguably broad enough to encompass them—a fact which has not gone unnoticed by companies such as Linden Research, Inc. and InWorldz, LLC.

Under the DMCA, protection is only provided if you are a “provider of online services”, which for our relevant purposes means the operation of a grid which is accessible by others.  A standalone grid in hypergrid mode would fall into this category, as would a closed grid such as InWorldz™ or Second Life.™  If you are running a grid that is not accessible by anyone else—say, for example, off of a USB drive—then you are not a provider of online services and would not qualify for the protection from liability. If you are leasing a region or regions from a grid then you yourself are not a provider of online services and don’t qualify for the protection from liability; the safe harbor would belong to the owner of your grid. If, however, you are subleasing regions to others, you might very well be considered a provider of online services and should consider taking the following steps to protect yourself from liability.

Write policy, enable protections, appoint agent

The first thing you need to do is come up with a written policy that allows for the termination of users of your grid for copyright infringement. Whether or not you give a warning first is up to you, but termination must be part of the policy. “Users” in this case should be taken to mean both residents and visitors, and they all need to be informed your policy. Most importantly, you need to actually follow the policy. Adopting a policy and then not complying with it is simply a recipe for disaster. Notification of the policy must be in writing and readily available for people to read.  A “click through” consent requirement prior to logging in, for example, would suffice; as would the sending of a blue notice to someone when they first enter your grid. End users have to have the opportunity to read the policy.

Second, you have to allow copyright owners the opportunity to use standard technical measures to identify and protect their copyrighted works as long as those measures do not impose a substantial cost or burden on your grid’s operation. Standard technical measures is a statutory term of art which essentially means that which is currently in common usage, such as watermarks on photos. If you do decide to prohibit certain forms of copyright identification or protection, you’ll need to have actual documentation of how those particular forms substantially denigrate your grid’s performance or causes you an increase cost. As a practical matter, this shouldn’t really be an issue as the most common copyright protection used in virtual worlds (i.e. no mod, no transfer, no copy) has a negligible effect on a grid’s performance.

The last thing you’ll need to do is to designate an agent, the person who will receive notifications that there are copyright infringing materials present on your grid. You need to make that person’s real name, address, telephone number and email address available to your users, at a minimum having the information on your website and any other place where it can easily be located by the public. It is essential that whomever you designate to be your agent understands the importance of their role, is always available via the listed contact information and is responsible enough to take it seriously.

In addition to informing your users of your designated agent’s identity, you must also file an Interim Designation of Agent to Receive Notification of Claimed Infringement with the Registry of Copyrights. This step is often overlooked. All designated agents are listed in a directory on the Copyright Office’s website.  Failure to file with the Copyright Office will likely prevent you from limiting your liability. Along with the form, you must pay the requisite fee, currently US $105. While a specific form for the designation is not required, it is strongly suggested that you utilize the sample forms provided by the Copyright Office to ensure you provide all the necessary information. See http://www.copyright.gov/onlinesp/ for more information, sample forms and current fees.

Once you have completed the above, you’re in a much better position to take advantage of the safe harbor provision of §512 whenever someone makes a claim that copyright infringing materials have been found on your grid. Of course, as we shall see in the next article, how you respond to the claim of alleged infringement will be crucial to maintaining your protection.

Tre Critelli

Tré Critelli is a well-known speaker in the area of implementing technology into the practice of law. He and his firm were awarded the first Innovation Award from the College of Law Practice Management and its co-sponsor at the time, the Microsoft Corporation, which recognized CritelliLaw, p.c. for its innovative action in improving law firm efficiency through the use of technology and office design. Tré Critelli lives and practices in Des Moines, Iowa, with the law firm of CritelliLaw, P.C. He recently concluded his term on the Iowa Supreme Court’s Attorney Disciplinary Board, on which he had served for six years, as its chairperson for the past two.