Does Your Website’s Boilerplate Need a Tune-up?

Does Your Website’s Boilerplate Need a Tune-up?

Everyone knows that a car won’t operate properly without periodic tune-ups.

That same basic logic applies to the legal terms and conditions of your website.

Most sites created in 1998 or later probably include a “Designation of Agent to Receive Notification of Claimed Infringement under the Online Copyright Infringement Liability Limitation Act (Section 202 of the Digital Millennium Copyright Act, (5 USC Section 512)), and 37 CFR Part 201”.

That bloated title refers to language to try to provide protection against liability – a “safe harbor” - if a third party posts content on your site – an image, for example, or text – that violates another person’s copyright.

If your designated agent receives such a notice, your firm (as site operator) is supposed to remove the allegedly infringing content, or assert a defense to the alleged violation (as with any other claim of copyright infringement).

The 1998 law that created that safe harbor (the Digital Millennium Copyright Act, or “DMCA”) was always an “interim”, temporary rule, pending regulatory action to make the rules permanent. In 2016, that permanent rule has finally been proposed – with a December 31, 2017 deadline to make a new filing. Prior filings cannot be renewed. (The new rules are online at https://www.copyright.gov/title37/201/37cfr201-38.html.)

The new rules also set a $6 fee for each filing or renewal. A lengthy FAQ supplements the rule with many technical details. (https://www.copyright.gov/dmca-directory/faq.html)

While few people read the terms and conditions of websites, they can be just as legally enforceable as a written contract that you negotiate and sign. Just as any form agreement needs periodic review to make sure it still protects your business, your website boilerplate may also need updating – especially if you have adopted new technologies, or collect personal information.

If you would like to discuss a new DMCA clause for the Terms and Conditions of your website, or how to update them generally, please contact Stanley Jaskiewicz or Bruce Bellingham for assistance. Mr. Jaskiewicz may be reached at 215-241-8866 or sjaskiewicz@lawsgr.com, and Mr. Bellingham may be reached at 215-241-8916 or bbellingham@lawsgr.com.