Technology is wonderful. It creates information sharing opportunities that surpass anything we have ever known. With the click of a mouse or the touch of a finger, you can learn just about anything.

With such immediate and extensive access to so much information, it is not always easy to know what is true and what is concocted in the mind of some pseudo expert.  Armchair experts are everywhere, spouting a plethora of sometimes useful opinions, but most often spewing falsities.  It’s when their opinions cross over into the realm of “supposed facts,” that a problem exists.
One area where pseudo experts are most often quick to share opinions, masquerading as fact, is in the area of law.  They read a few blogs and now everyone thinks they are a lawyer.  The rules surrounding the Digital Millennium Copyright Act (DMCA) are ripe for misunderstanding among non-lawyers. As some folks quickly discover, unless you stay up on the law, you are likely to miss it.
Section 512 of the DMCA provides a safe harbor for internet service providers (ISP). It provides a shield between ISPs and copyright infringement liability based on copying or storage done by the ISP’s users, as long as the ISP satisfies certain conditions. If they do not meet those statutory conditions, then the ISP can be found liable.
One of the great myths heard around the social media water cooler is that website owners are always protected by the DMCA, no matter what they do.  CaféPress, Inc. (CaféPress) just discovered that was not true.
CaféPress, like so many others, believes that if they use the word “store” they are safe. Wrong. A federal court sitting in the Southern District of California held that CaféPress went beyond the bounds of “storage.” The fact that CaféPress retained the right to determine which user content to upload, the right to modify the content, and the right to set pricing, put it into the non-protected class. There are of course people who believe this was a bad decision. I, on the other hand, believe it is correct.  It’s about time ISPs stopped being given unfettered discretion to facilitate copyright infringement in the name of the DMCA.
Here are a few take-a-ways:

  1. Know the current law. The law changes every day. One day it may work in your favor, and the next day, not so much.
  2. Don’t believe everything you read on the Internet, unless it is written by someone with the expertise and credentials to know what they are talking about. Review your terms of use to make sure they actually say what you think they say, and what you want them to say.

Until next time, I’m Attorney Francine Ward helping you protect your assets and stay out of court.  Join the conversation on my legal Facebook Fan Page, my Twitter page, or in one of my LinkedIn groups.

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