As a Realtor® or Broker, you allow consumers to search your real property listings, photographs, videos, public records and other real estate information over the Internet and/or provide other online services to consumers. Whether you are aware of it or not, this service you provide also carries with it an obligation to protect the data you offer. Meaning, if you knowingly publish content on your website(s) without the permission of the content owner, you may be subject to a copyright infringement claim.
U.S. Copyright law protects authors of “original works of authorship”; i.e., what you (or others) create from your intellect is protected. This is called “Intellectual Property” (IP) and it includes any photographs you take. The Copyright Act gives the owner of copyright the exclusive rights for use and distribution of that work, including the right to suppress it, subject to some limitations.
This is an important protection provided by law that allows an avenue for legitimate infringement claims against those who would misuse someone else’s original work. Unfortunately, there are some (for illustration purposes we’ll call this individual “Mr. Unsavory”) that would, and do, abuse the law in an attempt to make a “quick buck.” In the real estate industry, the situation might play out something like this:
An MLS subscriber uploads a photograph to the MLS which is then displayed on your IDX website
Then you receive a notice (often misleading and exaggerated) from Mr. Unsavory (or his attorney) claiming the photo belongs to him and demanding licensing or settlement fees for your use of “his” photo.
If you do not pay said compensation, Mr. Unsavory is going to sue you for copyright infringement.
In the past, an Online Service Provider (OSP) could be held liable for material posted or stored on its website that infringed another’s copyright rights, even if the material was posted by a third-party (such as an MLS subscriber). Such claims could result in significant sums in copyright infringement damages. Statutory damages are as high as $150,000.00 per work (See 17 U.S.C. §504). In the past, your choices would be to (a) pay the exorbitant fees to defend the false claim and win the lawsuit, (b) pay the exorbitant fees to defend the false claim, lose the lawsuit, and pay the statutory damages (at a minimum), or (c) pay Mr. Unsavory his demand. Mr. Unsavory is relying on the fact that you will pay his demand rather than face the threat of paying such high fees to defend the lawsuit and risk a loss.
Avoiding a Copyright Infringement Claim Before It Happens!
The good news is that the law provides tools to defend against such claims before they occur. The Digital Millennium Copyright Act (DMCA) is a federal copyright law that gives certain copyright protections to online content by providing exemptions, called a “safe harbor,” from copyright infringement liability if the OSPs meet certain requirements. For example, one of these safe harbor provisions will protect OSPs that host or store content submitted by or at the direction of its users (e.g. user-generated content). An OSP that complies with this provision, cannot be liable for copyright infringement if a user posts infringing material on its website.
Even more importantly, it is likely that Mr. Unsavory already knows about the DMCA provision. Therefore, when he sees the DMCA notice on your website, Mr. Unsavory will not attempt to pursue you with his false claims. That is because he will know at the outset that you are protected under the safe harbor exemption and will deny him his “fast cash” scheme.
How to Find Shelter in the Safe Harbor?
In order to qualify for the safe harbor, a provider must first meet the definition of an OSP. Section 512(k) defines an OSP generally, as a company that provides access to the Internet or online services.
This definition is rather broad, which means it would likely include MLSs, its participants, and subscribers hosting an IDX display. To qualify for this safe harbor, the OSP must:
Designate on its website an agent to receive takedown requests and register that agent with the U.S. Copyright Office,
Develop and post a DMCA-compliant website policy that addresses repeat offenders,
Comply with the DMCA takedown procedures (described below),
Not have actual or constructive knowledge of the infringing content or activity,
Not be aware of facts or circumstances from which complained-of infringing activity is apparent,
Not receive a financial benefit that can be directly attributed to the infringing material or activity, and
Act “expeditiously” to remove or disable access to the infringing content upon proper notice of the infringing content.
What is a Takedown Notice and What Must I Do About It?
A Takedown Notice is a written notification from a copyright owner to you as the OSP, alleging your website has posted or stored content that infringes its copyrights. If the Takedown Notice complies with the DMCA Takedown Notice requirements, you must locate the alleged infringing content and “expeditiously” remove it from your website. You must then notify the alleged infringer who may issue a Counter Notice if the alleged infringer believes the content he submitted does not violate any copyright rights. You must share any such Counter Notice with the copyright owner, and if the copyright owner fails to initiate a copyright lawsuit within ten (10) days, then you may restore the removed material.
One final tip: if you receive a Takedown Notice, keep an audit of all the actions you took in response to the Notice. An effective audit trail will provide a chronological record of documented events and your responses taken. This is a simple step that will serve to protect you and show your compliance with DMCA requirements should any questions later arise.
For more information, see 17 U.S.C. §512 and The Digital Millennium Copyright Act of 1998,
U.S. Copyright Office Summary, pp. 8 – 13. Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998)
Marinda Neumann, Attorney
Marinda is a managing attorney at Lotus Law Center. The firm provides legal services to individuals and businesses with a focus in business law, contract, copyright, trademark, and technology licensing. The firm also represents multiple listing services and associations providing transactional and policy counsel.
Prior to becoming an attorney Marinda served in the U.S. Navy as a Cryptologic Technician. She also worked within the Department of Defense (DOD) for over ten years in the software and computer technology field with an emphasis on data security and high assurance secure systems.
DISCLAIMER: This article is for general informational purposes only and is not intended or to be construed as the rendering of legal advice in any way. The foregoing information is provided to assist agents and brokers in understanding the Digital Millennium Copyright Act (DMCA), how the use of its safe harbor protections can support legal protections of real estate information databases and the provision of online content to consumers. The information contained in this article should be reviewed and discussed in consultation with your legal counsel and within the context of your current policies and procedures as well as any other rules and regulations.
This blog/website is made available by CRES Insurance Services for educational purposes to give you general information and understanding of legal risks and insurance options, not to provide specific legal advice. This blog/website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Claims examples are for illustrative purposes only. Read your policy for a complete description of what is covered and excluded.
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