Why real estate agents need a DMCA notice

Terms of Service

United States

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Donata Stroink-Skillrud

Co-founder and President of Termageddon

As a real estate agent, your website may allow visitors to search listings for properties through IDX. This allows users to search for listings, property details and, most importantly, allows users to view photographs of the listings. Since this information is accessible through your website, it may land you in hot water. Here’s how: a user uploads photographs onto the MLS. If the user does not have permission to upload those photos, they would infringe on the copyrights of the people who actually own those photos. However, since the infringing photos appear on your website, you may be liable for copyright infringement. People can sue for copyright infringement claims and, if you lose, you can be held liable for large amounts of damages.

Fortunately, there is a way to protect yourself from these copyright infringement claims by having a DMCA notice. The Digital Millennium Copyright Act (DMCA) is a law that provides a safe harbor for passive websites that contain materials that infringe on copyrights. Meeting the safe harbor requirements means that you will be better protected from copyright infringement claims. The DMCA safe harbor applies to passive websites, which are websites where:

  • The user selects and uploads the content to your website;
  • You do not change the content before it is available on your website for others to see;
  • The whole process is automated, without your involvement.

In order for you to take advantage of the DMCA safe harbor you must:

  • Not know of the violation or any red flags that would indicate a violation;
  • Immediately take down the infringing material once you become aware of it;
  • Not financially benefit from the infringing material;
  • Designate an agent for copyright claims on your website’s DMCA notice (which is gone in the terms of service) and in the online U.S. Copyright Office filing;
  • Manage and implement a notice and takedown procedure; and
  • Adopt and implement procedures for repeat infringers.

In order to take advantage of the DMCA safe harbor, your website’s Terms of Service must include a DMCA notice. This notice should disclose the following:

  • A notice that all materials on your website are protected by intellectual property rights and may not be copied or taken;
  • Your copyright agent’s name and contact information;
  • Instructions on how to submit a copyright infringement claim; and
  • A notice that users may not submit fraudulent copyright claims and that any such claims will be litigated.

The Terms of Service generated by Termageddon contains a DMCA notice that will protect you from copyright infringement claims. The notice also contains all of the disclosures you need to make to comply with the safe harbor requirements. Protect your real estate business today!

Team Termageddon

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About the Author
Donata Stroink-Skillrud

Donata is the Co-founder and President of Termageddon and a licensed attorney and Certified Information Privacy Professional. She serves as the Vice-Chair of the American Bar Association's ePrivacy Committee and the Chair of the Chicago Chapter of the International Association of Privacy Professionals.

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