Copyright and intellectual property are important considerations for any business hosting content online, including web hosting providers. With the internet making information sharing easier than ever, copyright infringement and misuse of intellectual property are constant concerns. Web hosts must implement policies and procedures to properly handle copyrighted materials, trademarks, patents, and other IP their customers publish online. Failing to do so can open up the web host to potential liability for contributory copyright infringement. This article will explore copyright and intellectual property issues relevant to web hosting and actions hosts can take to limit risks.
Copyright Law Basics
Copyright law grants authors, artists, and creators exclusive rights over the distribution and reproduction of their original works. This includes literary works, musical compositions, films, software code, and other creative works fixed in a tangible medium. Copyright protects the expression of ideas, not the ideas themselves. For example, a written description explaining a new computer algorithm could be copyrighted, but the algorithm method itself cannot.
Copyright arises automatically when a new original work is fixed in a tangible form. Registration with the U.S. Copyright Office provides additional benefits, like the ability to sue for infringement. Works do not need to contain a copyright notice to be protected. The standard term length of copyright in the U.S. is the life of the author plus 70 years.
The copyright holder has exclusive right to reproduce, distribute, publicly display, and make derivatives of their work. Violating any of these rights without permission constitutes copyright infringement. Exceptions like fair use allow for limited use for purposes like commentary, criticism, news reporting, research, and education.
Web Host Copyright Concerns
Web hosting services store customer websites and make them accessible on the internet. Customers typically provide all content hosted on their sites. This content regularly includes copyrighted materials like articles, images, videos, and software. By hosting customer sites containing copyrighted content, web hosts enable distribution and public display of those works.
Web hosts do not have direct control over what customers publish on hosted sites. However, courts have ruled that web hosts can be held contributorily liable if they know about infringing activity but fail to remove or limit access to infringing content. Contributory infringement applies if the host has knowledge of the infringement, and materially contributes to or induces the infringement.
Notice and Takedown Procedures
To limit infringement liability, web hosts implement DMCA notice and takedown procedures. These are based on the safe harbor provisions within the Digital Millennium Copyright Act (DMCA). The DMCA provides a safe harbor that limits the liability of online service providers for copyright infringement by their users, provided they meet certain conditions. This includes having a policy to terminate repeat infringers, and accommodating standard technical measures used to identify and protect copyrighted works.
The most important requirement is having a process to expeditiously remove or disable access to infringing material upon receiving a proper DMCA takedown notice. Copyright holders or their agents send takedown notices identifying infringing works. Web hosts must promptly remove or block the alleged infringements. Infringing customers can submit counter-notices contesting the takedown. Hosts generally restore content if the claimant does not file suit within 10-14 days.
Web hosts should publish DMCA or copyright infringement policies explaining the notice and takedown process. Making it easy for copyright holders to properly report infringements helps demonstrate the host is not ignoring infringing activity. Strictly enforcing the policy and terminating accounts of repeat infringers also helps establish the host is making good faith efforts to limit infringement.
Other IP Concerns for Web Hosts
Copyright is not the only intellectual property issue facing web hosts. Trademark, patent, and trade secret laws may also impose obligations or restrictions relevant to web hosting services.
Trademarks protect words, symbols, packaging, or designs that identify the source of products or services. Web hosts must ensure customer sites do not use domain names, content, or metatags that infringe others??? trademarks. Defensive registrations of trademarks as domain names can also help prevent cybersquatting.
Patents cover inventions and granted exclusive rights. Patents related to internet technologies and e-commerce business methods may cover aspects of web hosting infrastructure, control panels, billing systems, and other operations. Licensing or developing non-infringing alternatives can mitigate patent risks.
Trade secret laws require reasonable measures to protect confidential information that provides competitive advantage. This includes security procedures and non-disclosure agreements with employees and vendors to protect customer data, infrastructure details, and proprietary code.
While web hosts are not directly responsible for customer violations of these IP laws, removing infringing material once notified can reduce liability. Hosts should also inform customers not to publish illegal or infringing content.
Proactive Efforts to Limit IP Risks
Beyond reactive notice and takedown policies, proactive efforts can further reduce IP issues:
- Screening content and checking new uploads against databases of copyrighted works
- Limiting file sharing and pirated software distribution
- Requiring customers to represent they have rights for all hosted content
- Restricting access to sites flagged for repeat infringement until resolved
- Maintaining reputation blacklist of sites with rampant piracy
- Offering optional backups and distributed hosting to limit impact of takedowns
- Securing servers, connections, and accounts to prevent illegal uploads or hacking
- Implementing abuse reporting and flagged content review workflows
- Monitoring latest legal issues and court rulings to update policies
- Inserting copyright and trademark language in ToS to set expectations
Staying up to date on legal issues, case law, and industry best practices demonstrates a commitment to properly handling IP concerns. Resources like copyright.gov, ChillingEffects.org, and the EFF website can provide guidance.
Benefits of Proactively Handling IP Issues
Making sincere efforts to address intellectual property concerns provides important benefits for web hosting providers beyond just minimizing legal risks and takedown headaches:
- Improves professional reputation and elevates trustworthiness
- Shows respect for content creators and IP rights
- Avoids facilitating illegal activity that harms industries
- Helps establish the host as a partner against infringement
- Reduces subscriber complaints about takedowns disrupting their service
- Lessens infrastructure strain from illicit traffic and storage
- Minimizes harmful association between brand and piracy
- Can be marketed as a feature differentiating IP-friendly policies
By shaping policies to discourage abuse while empowering legitimate usage, web hosts can serve customers and industries more sustainably. With open communication and shared purpose, IP rights holders and internet services can coexist for the benefit of all users. A little prevention goes a long way.
Copyright and intellectual property laws create unique considerations for web hosting businesses. Developing compliant notice and takedown procedures is essential to avoid contributory infringement liability when customers post illegal content. Proactive efforts to limit infringements, cooperate with rights holders, and promote ethical practices helps further reduce risks. With structured policies and IP-friendly values, web hosts can thrive serving customers while respecting creative work and technological innovation.