Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can address your legal questions to him at goldberg@fhhlaw.com and he will answer them in a later issue.

Q: IN AN EARLIER COLUMN YOU WROTE ABOUT immunity from defamation liability for postings by third parties on my Web site, but noted that the statute does not protect me from copyright or trademark liability. It is equally, or perhaps more likely that someone will post copyrighted material to my site in a comment or discussion area. Am I liable for this?

A: Good catch. And a relevant one, from my very basic survey of ASNE member Web sites.

Many ASNE members are either unaware of this law or believe they do not need to do the work or spend the filing fee in order to avail themselves of the law.

Of the 10 member Web sites that I reviewed (and which shall remain nameless) only one had actually taken the proper steps to comply with the Digital Millennium Copyright Act. This is troubling. Compliance is relatively easy and cheap. Furthermore, copyright holders, from the musician Prince to the self-styled "creator" of the dance known as the Electric Slide, have been quite active in protecting their trademarks.

While it might be fanciful to think that users will post a Prince song or a wedding video in the comment section of one of your articles, perhaps it might pique your concern a little more to know that the Church of Scientology has also been very active in squelching dissent and criticism of its religion by threatening copyright infringement for those who post the church's copyrighted materials online.

You cannot predict what your users will post on your site, but it is very easy to protect yourself against liability for what they will post: $80 and a few moments to post the proper language to your Web site will pay off in the end, trust me.

Communications Decency Act
Recent columns have discussed protections offered by Section 230 of the Communications Decency Act, but, as I noted in the summer issue, this statute provides no protection for violations of "federal criminal law (such as obscene speech) or infringements of intellectual property ownership (such as copyright and trademark infringement)."

It is easy to envision the danger arising from this lack of protection for copyright and trademark infringement. Imagine a heated discussion that results in one commenter defaming another (or anyone). Section 230 of the CDA would protect against defamation. But imagine further that the defamation arose solely from the posting of a copyrighted image that was altered by the site user in a way that brings the subject of the photo into disrepute. Section 230 would still protect against defamation but not copyright infringement.

If this seems a bit farcical, note that the possibility of copyright infringement can arise in even the most civil of arguments. Imagine this time that an argument results in one poster supporting his or her argument by reproducing copyrighted material without permission. This use of source material without permission will likely buttress the intellectual argument but violate intellectual property laws.

The good news is that, though Section 230 of the CDA offers no protection in this situation, another federal statute does. Section 512 of the Digital Millennium Copyright Act was enacted under the same basic premise as Section 230 of the CDA: Web site operators should not have to scour their sites constantly in eternal vigilance against wrongdoers. Like Section 230 of the CDA, Section 512 of the DMCA points a copyright infringement victim toward the rightful target for legal action, that being the original poster of the content. The Web site operator, which would include a newspaper that allows third parties to post content, is immunized from liability if it just follows three easy steps.

1) The Web site operator must post policies that discourage repeat copyright infringement by users.

The Web site must have a policy that notifies users that repeat acts of infringement will result in the user being banned from the site. This notice must be clear to all site users. At a minimum, this suggests that the site include the notice in its already-existing general terms of service or terms of use. It could also appear in the language that new registrants must read and accept before signing up to use the site. I recommend making it a part of both.

2) The Web site operator must designate an agent for receipt of service under the DMCA.

The Web site must have a person who can be contacted by any copyright holder that believes a third party infringed its rights in posting content to the site. The designated agent's mailing address, phone number, fax number and e-mail address, as well as the full legal name and address of the Web site owner, must be posted on the Web site - preferably in the same location as the notice relating to repeat infringers.

This information must also be filed with the United States Copyright Office on a form known as the Interim Designation of Agent to Receive Notification of Claimed Infringement (which carries an $80 filing fee). More information about the appointment of a designated agent can be found on the Copyright Office's Web site here: www.copyright.gov/onlinesp. This information must be kept up-to-date. If the designated agent changes and the Web site operator and misses notifications as to possible copyright infringement, the immunity can be lost.

3) The Web site operator must avoid playing any role in the actual infringement.

This seems rather basic. If it can be proven that a Web site operator did anything other than act passively when the copyright infringement was committed, then the Web site can be considered to have contributed to the infringement.

In one way, the statute takes a rather broad view of contributing to copyright infringement. It expressly states that a Web site operator loses the immunity protections if it benefits financially from the infringing material. This is most likely to arise in one of two situations: (a) if the potentially infringing material was posted by a paid registrant or (b) if the copyrighted material consists of paid advertising - so all advertising content should be reviewed if you plan to take advantage of this law.

However, the statute still favors the Web site operator in many other ways. Section 512 states that the immunity protections are lost if the Web site operator has any prior knowledge that the material infringes on another's copyright. In other words, this section actively discourages Web site operators from pre-screening the content on their sites; if you do not pre-screen, there is no way to find infringing material.

More important, the statute creates a "notice and takedown" procedure that, if strictly followed, will provide full immunity from copyright infringement liability.

Anyone who feels he or she is the victim of copyright infringement has the right to send a takedown notice to the site's designated agent. If this takedown notice has the proper information (the name, address and electronic signature of complaining party, a description of infringing materials and their Internet location, sufficient information to identify the original copyrighted work, a statement of good faith belief that there is no legal basis for the use of these materials, and a statement that the complaining party is authorized to act on behalf of the complaining party), then the designated agent should simply remove the materials without asking any questions or passing judgment as to the validity of the infringement claim.

The designated agent then notifies the user who posted the copyright materials that the removal of that content has occurred. That user has the option of sending a counter-notification to the site's designated agent. The designated agent will notify the copyright owner of this counter-notification, but should not reinstate the questionable content unless 14 days pass without the filing of an actual copyright infringement lawsuit in federal court.

Yes, the Web site is now caught in the middle of a copyright infringement controversy between two other parties, but the site itself will incur no liability as long as it follows these procedures.