Window to the Law: Changes to DMCA Safe Harbor

Hi everyone, my name is Chloe Hecht, and I’m associate counsel for the National Association of REALTORS®. Thanks for watching this edition of Window to the Law. Today I’ll be discussing the Digital Millennium Copyright Act, or DMCA, including a new compliance requirement recently issued by the Copyright Office.

Real estate websites and IDX Displays are important business tools for real estate professionals. It’s a reality, however, that an IDX Feed may include photographs or other content that infringes someone else’s copyright. So what can you do to protect yourself from a copyright lawsuit? Well, the DMCA will shield you from liability in those situations if you comply with the DMCA’s requirements. The DMCA is a federal copyright law that exempts website owners from copyright infringement liability for infringing works that are posted to the website owner’s website by third parties. Given that statutory damages are as high as $150,000 per infringed work, compliance with the DMCA is a crucial risk management strategy for members.

The recent judgment in the VHT versus Zillow lawsuit illustrates just how costly copyright litigation can be. VHT, a photography company, sued Zillow for copyright infringement based on, among other things, Zillow’s use of VHT’s photographs on Zillow’s Digs website. In February 2017, a jury found that Zillow infringed VHT’s copyrights, and ordered Zillow to pay VHT $8.23 million dollars in damages. Before trial, Zillow sought dismissal of the case by essentially arguing that VHT should be suing the agents, brokers and MLSs submitting VHT’s photographs to Zillow. Thankfully the judge did not agree, but this emphasizes that real estate professionals and MLSs are potential targets for copyright lawsuits.

So, how do you ensure you are protected by the DMCA? First, you must designate a copyright agent with the Copyright office and identify that agent on your website. For example, NAR identifies its copyright agent in the Terms of Use on www.nar.REALTOR. A copyright agent may be anyone you choose, for example, someone within your company, your attorney or even yourself.

The Copyright Office recently digitized the agent registration process and is requiring everyone to re-register their copyright agent using the updated process before December 31, 2017. So even if you previously designated an agent, you must reregister that agent before December 31 ^st of this year. Anyone who fails to reregister their copyright agent by that date may no longer rely on the DMCA’s liability protections. Also, the Copyright Office’s updated registration process requires renewal of copyright agent designations every three years.

Second, you must comply with the DMCA takedown procedure. This procedure allows copyright owners to request that a website owner remove infringing material. In order to maintain your DMCA protection, you must remove the identified material from your website once you receive a takedown notice. Takedown notices will be addressed to the copyright agent you designate with the Copyright Office and identify on your website, so it’s important that your agent understand this procedure and what must be done in order to ensure your DMCA compliance.

Third, you must not know about the complained-of infringing activity. Also, you may not claim ignorance of infringing activity if circumstances make it apparent. So, basically, you can’t turn a blind eye to any infringing activity occurring on your website.

Fourth, you may not receive a direct financial benefit attributable to complained-of infringing activity when you are capable of controlling such activity. A direct financial benefit exists when the infringing activity is a draw for users and not just an added benefit.

Finally, you must have a policy regarding repeat infringers and that policy must be available on your website. NAR includes this information in its Terms of Use on www.nar.REALTOR, specifically under the DMCA and Termination sections. Check out NAR’s language and feel free to adapt it for use on your website.

Compliance with these requirements will ensure that you are protected from copyright liability in the event the IDX Display on your website inadvertently includes infringing photographs or other materials. If you have any questions, please e-mail me at checht@realtors.org. Also, check out www.nar.REALTOR for other copyright risk management strategies, including NAR’s sample photography agreements.

Thanks for watching this month’s episode of Window to the Law!