The Digital Millennium Copyright Act and How it Affects Realtors®

Intellectual property protection

The Digital Millennium Copyright Act (DMCA) is a federal copyright law that enhances the penalties for copyright infringement occurring on the Internet. The law provides exemptions or “safe harbors” from copyright infringement liability for online service providers (OSP) that satisfy certain criteria. Courts construe the definition of “online service provider” broadly, which would likely include multiple listing services (MLS) as well as participants and subscribers hosting an IDX display.

In 2016, amendments were made to the DMCA that created an electronic registration system for naming a “designated agent.” It is important to note that brokerage firms and agents looking to claim–or maintain–the safe harbor protections established under the DMCA must electronically register their designated agent prior to December 31, 2017. After this day, all prior paper filings will be invalid and only those registrations made through the new online system will satisfy the Act’s requirement for registering a designated agent with the Copyright Office.

How does this affect me?

At this point you’re probably wondering in what scenario this would apply to you and your business. The most likely situation would be a listing photograph uploaded to the MLS that infringes someone’s copyright and then appears on your website through your IDX. Without taking advantage of the safe harbor protections, you may be liable for copyright infringement.

Previously, MLSs had named one individual as the designated agent not only for itself, but also on behalf of each of its participants. Under the new regulations, this is no longer permitted. Therefore, when each MLS completes its online registration, that will supersede and invalidate its existing paper registrations for both itself and its participants. MLSPIN will be completing its online designation on December 20, 2017, and therefore, it is strongly recommended its participants complete their registration prior to that date to ensure continuous protection.

How to protect yourself

The DMCA provides a “safe harbor” to service providers (website operators) who allow its users to post material on the site without modification. This applies to both your website and IDX platform. In order to benefit from the “safe harbor” exemptions, the following criteria must be satisfied:

  1. Designate a copyright agent
    • This must be done online at the U.S. Copyright Office website by December 31, 2017.
      • Even if you have previously registered an agent, you must reregister an agent through the online platform.
    • The copyright agent must be clearly identified with contact information on the website. For example, the National Association of Realtors® (NAR) includes this under their “Terms of Use.”
    • You must renew your registration of a copyright agent every three (3) years
    • The registration fee is nominal (currently $6 per designation).
  2. You must comply with the DMCA takedown procedure
    • If notified of infringing activity on your website, the infringing content must be removed expeditiously.
    • Takedown requests will be sent to the copyright agent.
  3. You must have no knowledge of the infringing activity
    • You cannot simply turn a “blind eye” to infringing activity.
    • You must be merely a conduit for a copyright infringer and not an active participant in its user’s copyright infringing activities.
  4. You may not receive any direct financial benefit from the infringing activity
    • The infringing activity constitutes a direct financial benefit to the website owner it the infringing content draws users to the site and is not simply an added benefit.
  5. You must have a policy for repeat infringers
    • Keep track of infringing users.
    • Have a policy on your website laying out your policy for repeat infringing users.
  6. Each service provider must have its own separate designation
    • Only a single agent may be designated for each service provider.

Failure to implement the above procedure may leave you vulnerable to significant sanctions if copyrighted content is posted to your website by a third-party. Each violation can result in a fine up to $150,000.

NAR has produced a video that explains the changes to the DMCA and tips for Realtors® to comply with the safe harbor provisions. NAR has also complied with the “safe harbor” requirements on its website and has generously offered to allow members to use their language as a template for their own websites.

Finally, please see the very helpful FAQ section the United States Copyright Office has prepared that will address additional questions you may have regarding this update.