Mallory King - February 10, 2020 - Copyright Law, Digital Millennium Copyright Act Notice
In the age of the internet, content that infringes upon another’s rights in a copyrighted work can pass through many hands on its way to public distribution. The Digital Millennium Copyright Act of 1998 (“DMCA”) is an act by the legislation of the United States of America that serves to deal with this issue of infringing material, protecting both the owners of the copyrights that are being infringed, as well as the Internet Service Providers (“ISPs”) that are at risk of liability for their part in the infringement. The DMCA provides a clear process for the copyright owners to follow if they wish for their materials to be removed from a website. The DMCA also protects ISPs from liability for indirect infringement of copyrights, liability gained even if an entity has not directly infringed on one of the copyright owner’s rights, but has nevertheless played a part in that infringement.
The DMCA accomplishes these things through the mechanism of DMCA Takedown Notices. A copyright owner who has found infringing material online has a right to process a takedown notice against the website where the material is found. This serves to officially give notice to the ISP in control of the website that they are taking part in the infringement of a valid right in a copyrighted work. Without this notice, the ISP is not subject to liability for the infringing material being distributed through their services, so long as they make reasonable efforts to stop copyright infringement on their platform, and do not knowingly participate in infringement and gain financial benefits from that infringement. Once the ISP has notice of the infringing material, the ISP now has an obligation to have the content removed, or face liability for indirect infringement. This allows an ISP who complies with the DMCA’s requirements for reasonable preventative efforts to operate freely with the certainty that, until they receive a takedown notice, they are not at risk of liability.
While you can pay a DMCA agent to complete the process of requesting a takedown for you, any copyright owner has a right to issue a notice to an ISP on their own. The copyright owner should collect information about the infringement and the ISP responsible for hosting the content in question. This includes the URL where the infringing content is located, a description of the content sufficient for it to be identified in that location, the likely source of your content from which the infringer would have taken the material, and the proper contact information of the ISP hosting the material so that you have a place to send the notice. All of this information should be readily available at the webpage where you have found your copyrighted content. In fact, many websites who deal with these notices on a regular basis will likely have an online form requesting all of this information that you can use to easily submit your DMCA Takedown Notice to the company. If the website does not use one of these forms, templates can easily be found online to help you properly format your notice letter. This kind of assistance can be crucial to ensure that you meet the DMCA’s requirements for the notice, including statements that the notice is filed in good faith, that the information in the notice is accurate, and that under penalty of perjury, the originator is entitled to act on behalf of someone who owns an exclusive right that is being violated.
Before sending the notice, you should also consider your copyright infringement claim as a whole, namely if the material in question actually infringes your rights in the work, and if you truly have a claim to a copyright in the work. Additionally, even if there is a clear infringement, you should familiarize yourself with the possibility of the infringer bringing a fair use defense that could allow them to make use of your work even if they clearly infringe one of your protected rights. It is important that you have a clear right to oppose the use of the material before you request that it be taken down.
You may be on the receiving end of a DMCA Takedown Notice, either as a website host, or as a website manager being contacted by an ISP in receipt of a notice. In this situation, you are likely not the direct infringer, but are being contacted because you are in a position to be able to remove infringing material from the website over which you have control. This is not an accusation of your wrongdoing, but rather a warning that you may have unknowingly been party to the infringement of someone’s rights, and you should respond by promptly removing the requested material. Even if you believe you are within your rights to leave the material on your website, whether through fair use or a misunderstanding about the source of the material, you should remove the content immediately, and wait until you have contacted the issuer of the notice and come to an agreement with the complaining party to return the content to your website. If you cannot reach an agreement with the complaining party, you can file a DMCA Counter Notice after taking down the material if you have good reason to believe that the content was taken down in error. In this case, website hosts will often re-enable the content after 10-14 days unless ordered to keep the content removed under legal action by the copyright owner.
It may be difficult to analyze the legal basis for your DMCA Takedown Notice or Counter Notice, and it is essential that you are certain of your notice’s validity and compliance with the DMCA’s requirements before you send it. If you are looking for legal help in drafting or analyzing the basis of your notice, contact one of Traverse Legal’s attorneys today.
This blog post contributed, in part, by Traverse Legal Virtual Law Clerk Scott Pehoushek.