Expert: Dan Pepper - 2/17/2011

Question
Hello Dan, I am very interesting in creating a Network-like Adult Entertainment site and am in the midst of researching all that I can about everything related to the different kinds of Porn Sites out there. But I have a difficult time understanding how big Network/Tube sites are able to have videos on their websites that they didn't produce themselves?

What is their trick to getting around copyright laws?

Answer
Alex,

The network/tube sites rely upon the Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA).  For sites in the European Union, the Copyright Directive or EUCD, addresses some of the same issues as the DMCA.  

Title 17, United States Code, Section 512(c)(1) provides that "a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider."  A service provider is "a provider of online services or network access, or the operator of facilities therefor" and an "entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received."  17 U.S.C. § 512(k)(1).

The DMCA, however, does not grant blanket protection from copyright infringement liability.  The service provider may not take advantage of the DMCA's safe harbor provision if:

1.  The service provider has actual knowledge that the material or an activity using the material on the system or network is infringing;

2.  The service provider is aware of facts or circumstances from which infringing activity is apparent; or
 
3.  The service provider does not expeditiously remove or disable access to the material upon obtaining such knowledge or awareness of the infringing material.

In addition, if the service provider has the right and ability to control the infringing activity and if the service provider receives a financial benefit directly attributable to the infringing activity, the service provider will not be protected by Section 512 of the Digital Millennium Copyright Act.  If the service provider satisfies the above requirements of the DMCA and receives a proper notice of infringing material, the service provider must expeditiously remove or disable access to the material that is claimed to be infringing or to be the subject of infringing activity.

Before a web site owner can be eligible to claim the protection of the safe harbor provision of Section 512(c)(1) the DMCA, the owner must have:

1.  Filed an appropriate notice with the United States Copyright Office designating the owner's agent to receive notices of claimed infringement; and

2.  Displayed on the web site on a page accessible to the public, the information set forth in the notice filed with the United States Copyright Office.

The notice must contain the name, address, phone number, and electronic mail address of the agent and other contact information that the Register of Copyrights may deem appropriate.  If any information in the notice changes, the web site owner should file an amended designation of agent to receive notification of claimed infringement.  Currently, the Copyright Office charges a fee of $105 to file both the designation of agent to receive notification of claimed infringement and the any amendment to the designation of agent to receive notification of claimed infringement.