The DMCA and CDA are the Digital Millenium Copyright Act and Communications Decency Act respectively. Each of them govern content on the Internet and have different implications for websites.
CDA is the Communications Decency Act. This act carries a safe harbor provision with broad immunity for websites who are not content providers. This means that as a website – in general – you are not liable for the postings users put on your website. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
§230 of the CDA provides broad immunity. It covers: defamation, personal information, breach of privacy, breach of publicity rights, trade secret misappropriation (in 9th circuit at least – but will likely expand to other circuits), and more.
A website becomes a content provider, and liable for the content on the site, when the site starts mechanically steering users into unlawful behaviors. This would include actively facilitating defamatory statements, requiring the posting of copyrighted material, etc. Roommates.com, for example, contained dropdown menus for users to select roommates predicated on race, religion, and sexual orientation with a determined outcome filtering out prospective room mates conflicting with those choices. This violated the Fair Housing Act.
When does a computer service provider become a content provider?
- When it requires (not just steers) users into inputting necessarily (not just potentially) illegal content that can only be used for illegal purposes (Roommates and cases construing it).
- When it or its agents posts content
- When it assigns badges based on its subjective judgment rather than by aggregating crowd-sourced opinions.
CDA Compliance Tips
- Include a statement in ToS that prohibits users from using the site for unlawful purposes or violating laws – this is already done for you.
- Closely monitor what administrators and agents and moderators are doing
- Feel free to screen and select content prior to publication
- Feel free to solicit and encourage others to submit lawful content.
Section 512 of the Online Copyright Infringement Liability Limitation Act provides broad immunity for websites hosting material uploaded by users. The safe harbor provision requires website 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the infringing material.
This simply means that if a user uploads or posts infringing material to a website without the site owner’s knowledge, if they remove the material after receiving a DMCA take down letter they have safe harbor.
There is also limited liability for some activities associated with non-profits, but this is only for educational institutions.
A website cannot host content itself. However, posting a YouTube video of a news item would be cogent with the DMCA because placing an embedded video on the site is not the same as hosting the video. The DMCA take down letter would go to the actual host, like YouTube.
Consult with an attorney to discuss the best course of action for maintaining CDA and DCMA safeharbor. These tips are far from comprehensive. Anyone doing business online should maintain a process for dealing with DMCA complaints and maintaining their CDA immunity.