IT providers often add their copyright (DMCA) and privacy policies to their contracts. They incorporate those policies by reference or just promise to comply. That’s a mistake. If you’re the provider, you gain nothing by incorporating your policies. In fact, you pay a price.
Digital Millennium Copyright Act policies tell the public how you respond to copyright infringement claims. The DMCA doesn’t require that you post a policy. And you don’t have to post one to benefit from DMCA’s “safe harbor.” (That protects “online service providers” against copyright liability related to their users’ infringement.) The safe harbor doesn’t require that you publish anything other than contact information for the employee or agent you’ve assigned to receive copyright notices. (The safe harbor does have other requirements, including re registering that employee or agent with the Copyright Office.)
So what is a DMCA policy? It describes the steps you take when you receive notice of copyright infringement. It’s not required for the safe harbor. And you certainly don’t have to put those procedures in your contract.
In fact, it would make little sense to put a DMCA policy in your contract. The policy serves as an announcement to the public, not to your customers. It’s directed to third parties who might claim your customer or user infringed their copyright. So you should post it somewhere the public will see it. That’s probably not your contract.
Plus, adding those policies to your contract limits your freedom to amend them.
Referenced, Not Incorporated
Consider additional terms in your contract related to the DMCA. For instance, you might benefit from disclaimers related to customer copyright infringement — and related the steps you take to address it.
You can learn more about online polices in The Tech Contracts Handbook (3rd ed.), Appendix 4.
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