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I have made this site similar to Youtube/Instagram where users can upload photos/videos to their profile and share it with others.

Recently, some users have started to pirate content (some have started uploading Spongebob Episodes, Minion Movies, Hotel Transylvania Movies, etc). From these uploads, I am worried about being sued for copyright infringement.

In my terms however, I state that the platform holds no liability for content uploaded, and I strongly suggest users to hold rights to the media they upload. Even after this, I am still worried that I could get in trouble for the content my users upload.

So in the case of uploaded copyright infringement, will the platform also get in trouble?

(Servers are in the U.S., users view/upload content from across the world)

VictorineR
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    Does this answer your question? How can I legally protect my website from users who upload copyrighted material? – BlueDogRanch May 29 '22 at 23:40
  • And https://law.stackexchange.com/questions/73521/copyright-infringement-on-contents-posted-by-website-users – BlueDogRanch May 29 '22 at 23:40
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    You probably shouldn't be running this site unless you have taken proper legal advice - it's a minefield. Never mind copyrighted material, have you considered what you'll do if someone uploads something very illegal? – preferred_anon May 30 '22 at 09:52
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    If I remember correctly Napster used the defense in the early 2000s that P2P software was just a way to share data over the internet. That the software was not responsible for the IP theft of its users. The courts ruled that software that is almost exclusively used for IP theft is in essence an accomplice. Then Napster got shut down. – Neil Meyer May 30 '22 at 10:30
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    @preferred_anon - Their site sounds perfect for hosting child pornography and jihadi content – Richard May 30 '22 at 19:03
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    Such a site is quite vulnerable without the proper structure. A competitor could upload thousands of illegal files overwhelming the staff response. There should be a proper infrastructure to quickly suspend the visibility of a link and eventually take down later a file. There should be a quick way to take the hash of a file taken down and store it into a DB. Every new file uploaded should be checked against the hash DB. – FluidCode May 31 '22 at 11:12
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    Reflect how much effort platforms such as Twitch and Youtube are putting in to prevent users from uploading copyright protected material (much to the dismay of their customers and subscribers). I think this should already give you a strong indication who is liable. – xLeitix May 31 '22 at 12:32
  • "I state that the platform holds no liability for content uploaded" has probably even less legal effect than the sign on the back of a truck which states "not responsible for broken windshields"... – brhans May 31 '22 at 13:46
  • So you want to be a YouTube without the responsibilities of being a YouTube; outstanding move. – MonkeyZeus May 31 '22 at 13:53

1 Answers1

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The platform will get in trouble for copyright infringement. The disclaimer that you are not liable does not work, legally, since the person suing you hasn't agreed to the TOS on your webpage. You can be sued for "secondary infringement", meaning that not only the uploader but also you the service provider are liable.

The solution to this quandry is the "DMCA safe harbor", a set of rules which, if you follow them, you won't be held liable. The specific piece of law is here. The essence of the rules is that you have to have a "designated agent" who receives takedown notices: if a copyright owner finds their stuff on your page, they officially notify you, then you take the material down – expeditiously (no dawdling). You notify the uploader, they either accept the takedown or file a counterclaim, you notify the rights-holder, there's a waiting period, then the rights holder can file a lawsuit, or not. If the rights-holder doesn't file suit, you can put the material back up.

You cannot rely solely on the intricate DMCA notice / counter-notice dance, because under para (c)(1)(A)(ii) of §512, you also must not be "aware of facts or circumstances from which infringing activity is apparent".

user6726
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    then the rights holder can file a lawsuit against whom? the platform? – Rodney May 30 '22 at 08:53
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    @Rodney No, against the uploader. That point is to prevent DMCA abuse. If the uploader doesn't accept the takedown whoever made the DMCA request must file a suit otherwise the whole DMCA request is thrown out as invalid. So if the DMCA is frivolous people wont invest money in actually filing the suit and therefore the DMCA takedown will expire and content will be online again. This can still be abused because the content is still taken down temporarily, but at least is better than a permanent takedown. – Bakuriu May 30 '22 at 09:27
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    @Bakuriu so the party filling suit is responsible for making the platform aware that a suit has been filed against the uploader, or else how does the platform know what's going on? – Rodney May 30 '22 at 09:45
  • @Rodney Yes, I believe so. DMCA is a shortcut, as such it can clearly be abused by both sides. In order to minimize abuse: 1) the host must immediately take offline content that was claimed 2) the copyright holder must be ready to pursue real legal action to protect their content 3) The uploader must be able to quickly refute the takedown and proceed with legal proceedings 4) The host must protect uploaders from fake downs by immediately putting online content if legal proceedings are not started after the takedown notice is refused. – Bakuriu May 31 '22 at 09:56
  • It should be noted that going from where OP is currently, expertise-wise, to "able to set up a DMCA compliant platform" is long, and potentially very, very expensive. Lacking that expertise it may be most pragmatically useful to shut down, as extreme as this sounds. – xLeitix May 31 '22 at 12:35
  • @Polygorial doesn't have to. Only in the countries there it intends to have business in . Otherwise, the worst that could happen is that your service will be blocked in that particular country. – Dan M. May 31 '22 at 13:26
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    @Bakuriu: Should a server owner demand legal notice from the court that the lawsuit is filed, or would there be a standard procedure by which a copyright claimant would notify the server owner "Suit has been filed at ____ court with docket number ____; you may verify it by going to [publicly verifiable URL] and typing in the information below"? – supercat May 31 '22 at 14:51
  • @DanM.: "Otherwise, the worst that could happen is that your service will be blocked in that particular country." Actually, the worst that could happen is OP getting arrested the next time they visit that country for vacation. – Heinzi May 31 '22 at 15:15
  • @Heinzi that's falls under "intends to have business in". – Dan M. May 31 '22 at 15:28
  • @DanM.: ...or, if they are unlucky, if they visit another country (that has an extradition treaty with the particular country), or, if they are very unlucky, even if they stay at home. – Heinzi May 31 '22 at 15:48
  • @supercat I believe this is handled through the DMCA Designated Agent Directory. I believe that the designated entity is the one that must be contacted for everything DMCA related for the host. I'm not sure whether filing the lawsuit will somehow automatically send a "notification" to the agent (doubtful) or whether it's on you (really your lawyer) to do so. – Bakuriu Jun 21 '22 at 19:22
  • @Bakuriu: If an agent receives a letter from a copyright claimant saying "I responded to the counter-claim by filing a lawsuit somewhere. Trust me. Really, I did" but nothing more specific than that, I would expect that the agent would be entitled to disbelieve such claim. Is there any standard for what form of notice the copyright claimant must supply to the agent, and what means must be supplied to confirm its veracity? Even if courts wouldn't mail such notice, I would think they should provide a docket number or other means that the agent could use to confirm that the suit was filed. – supercat Jun 21 '22 at 19:40
  • @supercat I don't know these details. They could easily depend on the state. What I know is what you can find, e.g., here [... Once the service provider has received a valid DMCA counter notice they must wait 10-14 days. If the copyright owner sues the alleged infringer in that time frame the material will remain down, but if no suit is filed then the service provider must re-activate or allow access to the alleged infringing activity.](https://copyrightalliance.org/education/copyright-law-explained/the-digital-millennium-copyright-act-dmca/dmca-counter-notice-process/) – Bakuriu Jun 21 '22 at 19:49