Websites: Writing the Disclaimers and Copyright Notices

A disclaimer on a website is essential as it serves to protect and limit the website owner’s liability by outlining expectations and obligations a person will agree to before using the site. At its core, it removes any warranty for the information provided and gives notice that use of the site is at a person’s own risk.

One disclaimer serves the content for the entire site. Each page, however, should include a link to the disclaimer. Additionally, on pages that contain specialized information you may want to use an abbreviated disclaimer. For example, if you provide medical information you may include that you are not a doctor; the information should not be considered medical advice; the information may be out-of-date, inaccurate or incomplete; and suggest the user speak to a doctor.

Examples of What Might be Included in a Disclaimer Statement

Your disclaimer should be both explicit and broad. Here are some examples of wording that might be used in a disclaimer statement:

• The material on the site is made available with the understanding that you are not engaged in providing professional advice.
• Before relying on material on the site users should independently verify the accuracy, completeness and relevance for their purposes and obtain any appropriate professional advice.
• The material may include opinions, recommendations or other content from third parties that do not necessarily reflect your views.
• Links to other Web sites are included for the user’s convenience and do not constitute an endorsement of the material on those sites, or any associated product or service.
• The listing of a person or company in any part of your site in no way implies any form of endorsement by you of products or services provided by that person or company. (This is particularly important when you are using reciprocal links and logos to improve Google.com rankings.)

Copyright Notice

In addition to the website disclaimer, you must also have a copyright notice that complies with the Digital Millennium Copyright Act (DMCA). It should state that the website and its content are subject to the laws of the United States, that you own the copyright in the material on the site, and which third parties own the copyright to some materials on the site. You will also want to clarify your policy on allowing others to use the material on the site, what permissions are necessary, etc.

Infringement and Take Down Notices

Moreover, you need to include language from the DMCA regarding complaints of copyright infringement and take down notices. This language advises both parties in a dispute of the necessary steps that they must follow either to have material taken off the site or to defend against a copyright infringement claim. For Web sites that rely heavily on third-party content, such as YouTube.com and Facebook.com a more thorough copyright policy may be required. An intellectual property lawyer will be involved in drawing up the statements on their Web sites.

The Risk of Transmitting Information Across the Internet

A clause highlighting the inherent risks in sending sensitive materials to or through your site is also important. A further step would be to use a popup window that requires users to click that they understand the risk before sending the information.

Policing Content

If your site contains content aimed at a mature audience, always have a disclaimer appear before the user can enter the site along with an “over 18” click box. If you are concerned about users posting sensitive material to your site, then you may consider including an obscenity clause that warns visitors that inappropriate material will be removed and that abusers will be prevented from posting further content.

The more control over content that you exercise, the more responsibility you have to regulate. Online service providers (ISP) receive a safe harbor through the DMCA on the basis that they merely provide the space for users, that they cannot police every user’s postings and that they receive no revenue from the posted content. Google, Inc. has been successful to date walking that fine line. Companies such as Napster and Grokster, however, have learned at a great cost that there are limitations to what the DMCA can protect.

Google, YouTube and Viacom Creating the Law

Currently Viacom, Inc.’s lawsuit against YouTube, Inc., YouTube, LLC, and Google, Inc. is winding its way through the New York District Court. Viacom contends that YouTube’s users contributed pirated copyrighted works owned by Viacom to the site by the thousands, including television programs, motion pictures, music recordings, and other entertainment programs. Like the Napster and Grokster lawsuits that established rules for downloading copyrighted music, the Google, YouTube and Viacom battle is set to become a seminal case for online media and may eventually affect web owners’ abilities to avoid liability even with disclaimers on their Web sites.