If your site allows visitors to post digital files or comments (e.g. in an online blog, as well as in a forum or chat room), you could be held liable for copyright infringement if any of their postings infringe the rights of another person, even if you are unaware of the infringement. Under general copyright principles, you would be strictly liable for their copyright infringement, even if you are "innocent".

You could also be liable for defamatory statements posted by bloggers.

The Playboy Case And Copyright Infringement

A good example of an "innocent infringer's" liability that occurred before the enactment of Digital Millennium Copyright Act (DMCA) is the case of Playboy Enter., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). In this case, Playboy alleged that the defendants who operated a bulletin board service (BBS) were liable for copyright infringement. Subscribers to the defendants' BBS had illegally taken copyrighted photos owned by Playboy and uploaded them onto the defendants' BBS.

The court found the defendants liable for copyright infringement, despite the fact that the defendants did not upload the photos (the subscribers uploaded them), and the defendants were unaware of the presence of the infringing photos until the lawsuit was filed.

The court stated: "...intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement ...".

The DMCA, enacted in 1998, provided a "safe harbor" so that this harsh result can be avoided, but service providers must take affirmative steps to qualify for it... or else you will suffer the same harsh fate as Frena.

To qualify for the DMCA "safe harbor" from strict copyright liability, you are required:

* to post a specific notice on your site (Terms of Use); and

* to file the DMCA Registration Form with the US Copyright Office.

Liability For Defamatory Statements

In addition to liability for the copyright infringement of bloggers, another pitfall to avoid if you permit visitors to post to your site is liability for their defamatory comments about another person, a competitor, or another product.

Defamation is an intentional false communication, made either orally or in writing, published to a third party, which injures another person or company's good name or reputation.

While it is clear you will be liable for defamatory statements posted by you or your employees on your site, what about defamatory statements posted by bloggers? Will you be liable?

Statements which consist of pure opinion are not actionable... however, merely stating that a statement is pure opinion does not make it so. For example, a law school professor was awarded $3 million in damages arising out of defamatory statements published on a student's site.

Online defamation may occur in the context of product reviews where strong statements are posted such as "do not buy this product because it will not perform as advertised".

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