The Digital Millennium Copyright ACT (DMCA) is one of the best-known and most-controversial pieces of legislation passed in recent years. It has had a greater impact on the Web than virtually any other piece of legislation and is largely responsible for much of the Web we see today.
One of the critical elements of the DMCA was the Safe Harbor provisions, which established a notice-and-takedown system for removing allegedly infringing works from the Web.
For the most part, that system has been used as intended. Countless DMCA notices have been filed to secure the removal of everything from illegal MP3s and movies to plagiarized poems. However, the system has also been abused at times and mistakes have been made in other cases.
Given how important this process has become, it is crucial for bloggers, Webmasters, hosts and anyone who posts content online to understand how the procedure works so they can both take advantage of it to protect their own work, if needed, and be prepared to answer any claims that are filed against them.
In 1998, U.S. copyright law was beginning to look dated. Though Congress had just rewritten the entire copyright statute some twenty years prior, the rapid growth of the Internet had left a lot of questions about copyright unanswered.
One of the bigger questions what liability Web hosts and other service providers faced when users on their network committed copyright infringement. Before the DMCA, theoretically, sites such as Geocties, which hosted content for users, could be sued for contributing to copyright infringement simply because they provided the hosting for unlawful content.
As part of the DMCA, which itself stemmed largely from the World Intellectual Property Organization Copyright Treaty, Congress gave Web hosts "safe harbor" from such liability provided they met certain qualifications and obeyed a set of rules. This meant that Web hosts could not be held liable for infringement that took place on their service, so long as they completed the necessary elements.
In the end there were four different kinds of online service providers that were given protection under the law:
1. Conduits: Services that were not destinations in and of themselves, (IE: Broadband access providers) were granted complete safe harbor for infringements that passed through their networks.
2. Caching Services: Services that cache data temporarily, such as those used by many broadband providers to speed up access, were also granted complete safe harbor.
3. Web Hosts: Services that host content were given safe harbor provided they had no knowledge of the infringement, lacked the ability to control it, did not encourage it, did not profit directly from it and work to expeditiously remove infringing material after receiving proper notification.
4. Information Location Tools: Similar to Web hosts, information location tools, including search engines and directories, were given safe harbor provided they met a similar set of criteria.
Though this element of the law has seen its fair share of controversy, without safe harbor, many Web sites, including YouTube and most social networking sites, would almost impossible to operate. The legal risks would simply be too high. In short, this procedure is largely responsible for many of the sites and services we have today.
The Takedown Notice
Under the DMCA, copyright holders and their agents can demand removal of allegedly infringing content. To do that, they must provide a complete takedown notice. Under the law, this notice must contain the following elements:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This notice, which must be filed by the copyright holder or an agent working for them, is sent to the service provider's DMCA agent, which all service providers must appoint and register with the U.S. Copyright Office. Most DMCA filers, use some form of stock letter to help speed the process along.
Once the notice has been received, the host has to first make sure it is a complete notice and then they are to either remove or disable access to the infringing work. This can be done many ways but is usually handled by simply backing up and deleting the allegedly infringing material.
With that done, the host then usually contacts the client involved, who in turn has the opportunity to respond.
The Counter-Notice Process
The client who is the subject of the DMCA notice, has several courses of action that they can take.
First, they can simply do nothing. If the notice was valid and the takedown was just, they can simply do nothing and accept that the work has been disabled.
Second, if the work was not infringing and the notice was either in error or malicious, the client can then file what is known as a counter-notice. That notice must contain the following elements:
1. A physical or electronic signature of the subscriber.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification.
When a counter-notice is filed, the host must then notify the person who filed the original notice and then, in a time between 10-14 business days, restore the work that was taken down. In that time, the filer of the notice has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline.
Finally, in extreme cases where the notice was false and filed knowingly so, the subscriber/user can file suit against the filer for damages including attorney's fees and court costs.
How to File a Takedown Notice
If you discover that work you hold the copyright in is being infringed and wish to file a DMCA notice. You can take the following steps to do so.
1. Determine if the work is infringing, consult an attorney if necessary.
2. Take screenshots or otherwise preserve the infringing site, useful if a dispute should arise later.
3. Obtain a stock DMCA notice template and fill it in with the required information.
4. Using a service such as WhoIsHostingThis or Domain Tools, locate the host of the site where the work is located.
5. Look on the host's site and attempt to locate the contact information for their DMCA agent.
6. Failing that, see if the host has registered with the U.S. Copyright Office and provided the needed information there.
7. If that fails, send the notice to the host's abuse team.
8. Wait at least 72 hours and ensure that the work has been removed.
9. If unable to secure removal of work (IE: Not a U.S.-based host or otherwise uncooperative), consider filing a notice with each of the major search engines.
If everything goes according to plan, the work should be removed in a a couple of business days. Some hosts respond very quickly, even within the hour, where others make take a little more time. Be patient with your notices and be on the lookout for the work to be removed as not all hosts will send confirmations via email.
How to Respond to a Notice
If you are on the other end of a DMCA notice, you need to take certain steps to ensure that your rights are not trampled on or that the process is not abused.
1. Request a fully copy of the notice if it isn't provided so that you can understand who filed the notice, what works they are claiming to be infringing and the works they say are the originals.
2. Determine if the notice is valid or was sent in mistake. Consult an attorney if necessary.
3. If the notice was in error or malicious, file a counter-notice as promptly as possible, even if you do not wish to have the work restored. Instructions for doing so should be included with the notification of the takedown. If required, you can use a template for responding.
It is important to file a counter-notice if the takedown was sent in error, even if you view the takedown as not being a big deal because hosts are required to ban and delete accounts of repeat infringers. If you receive too many DMCA notices, you may find your entire account disabled, even if the takedown notices were invalid. As such, it is important to file counter-notices to prevent such an action from happening.
Takedowns in Other Countries
The biggest limitatin to the DMCA notice and takedown system is that the DMCA is limited to the U.S. and only applies to Web hosts and search engines located within the country.
However, other nations have adopted very similar systems. The European Union, has the European Directive for Electronic Commerce, which offers a very similar procedure (though implementation differs from country to country). Australia is another nation that has a notice and takedown system.
Other nations, such as India, do not have any safe harbor at all, meaning that there is no formal system for demanding removal of work but hosts are generally cooperative due to the threat of a lawsuit. Still other nations, including Canada, have no notice-and-takedown system but also provide complete safe harbor for Web hosts, meaning there is little way to compel Web hosts to remove content short of a court order.
When filing a takedown notice with an ISP in another country, it is best to check the laws that exist there and ensure that your notice is compliant with their terms.
The DMCA process, whether on the filing or receiving end, should never be taken lightly as missteps could, and often do, have very serious legal implications. If you are unsure about what to do in a specific situation, consult an attorney.
As controversial as the DMCA safe harbor protections have been at times, it has enabled many of the sites we enjoy every day. Furthermore, many of the incidents that have caused controversy could have been resolved by one or all parties understanding the law better and using it correctly.
This is why everyone who posts content online should be at least aware of this process and how it works. Even if you aren't a U.S. citizen, it is very likely your host is and the search engines people use to find you almost certainly are. As such, the law can affect you.
Fortunately, the process itself is fairly easily understood and offers a great deal of protection. for those who both need to file a notice against infringing material and those who are filed against without cause. However, as with any law, it is up to us to apply it correctly and that is the greatest challenge we face.