Digital Millenium Copyright Act (DMCA)

What is the DMCA?

The Digital Millenium Copyright Act is codified at 17 U.S.C. §512. The DMCA provides limitations on liability for online service providers who permit third parties to place materials on websites operated by the online service providers, provided that the online service providers meet certain “safe harbor” requirements. These safe harbor requirements also provide a means for intellectual property owners to enforce their intellectual property rights and stop infringement through the use of takedown notices.

DMCA Safe Harbors

A service provider is protected within the safe harbors when that service provider does all of the following:

1. Material is placed on the service provider’s website by someone other than the service provider, without selection or modification by the service provider.

2. The service provider does not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works.

3. The service provider has no actual knowledge of copyright infringement, and is not aware of any other facts or circumstances from which infringement would be apparent. The service provider does not have an affirmative duty to monitor content posted by third parties.

4. The service provider has a designated agent for receiving takedown notices, and has kept the designated agent’s contact information up to date on its website as well as within the DMCA Designated Agent Directory of the US Copyright Office as described below.

5. Upon receipt of knowledge of infringement or a takedown notice, the service provider acts promptly to remove the infringing material or to disable access to the infringing material.

6. The service provider promptly notifies a subscriber upon removing or disabling access to allegedly infringing material.

7. Upon receipt of a counter-notice (described below) the service provider replaces or restores access to the removed material not less than 10 days or more than 14 days after receiving the counter-notice, unless the party claiming copyright infringement notifies the service provider that suit has been filed against the subscriber who posted the allegedly infringing material.

8. The service provider does not receive financial benefit directly from the copyright infringement.

9. The service provider has a policy which provides for termination of subscribers and account holders in response to repeated copyright infringement.

DMCA Designated Agent

Copyright owners must have the ability to quickly and easily find the contact information for the designated agent for receiving DMCA takedown notices. The name, address, telephone number, and email address of the designated agent must be made available in two places:

1. A publicly accessible location on the service provider’s website, and

2. The DMCA Designated Agent Directory of the US Copyright Office.

Providing the designated agent information in both places and keeping the designated agent information updated is important to qualify for safe harbor protection from liability for copyright infringement.

DMCA Takedown Notice

Upon discovery of infringing material online, a copyright owner may send a takedown notice to the designated agent of the service provider. To be effective, the takedown notice must include the following information:

1. Identification of the copyrighted work which is alleged to be infringed. If multiple works are located on a single site, then a representative list of the copyrighted works may be provided.

2. Identification of the material which is claimed to infringe the above copyrighted works, along with sufficient information for the service provider to identify the allegedly infringing works. A link to the allegedly infringing works is often included.

3. Contact information for the copyright owner or authorized agent.

4. A statement by the person sending the takedown notice has a good faith belief that the allegedly infringing material is not authorized by the copyright owner, an agent of the copyright owner, or the law (which would include fair use).

5. A statement that the information in the takedown notice is accurate, and under penalty of perjury, that the person sending the notice is authorized to do so by the copyright owner.

6. The signature of the copyright owner or an authorized agent of the copyright owner.

Care must be taken when deciding to send a takedown notice. Copyright owners who failed to consider the possibility that the allegedly infringing use qualified as fair use have been successfully sued by those who posted the material. Additionally, sending a wrongful takedown notice can result in liability for defamation, tortuous interference with contractual relations, and other causes of action. Before sending a takedown notice, please contact me to discuss your situation.

DMCA Counter-Notice

If your material has been removed as a result of a takedown notice, you may attempt to have the service provider restore the material by sending a counter-notice. A counter-notice must contain the following information:

1. Identification of the material which has been removed or for which access has been disabled, as well as the location of the material prior to removal or disabling of access.

2. A statement under penalty of perjury that the subscriber submitting the counter-notice has a good faith belief that the removal of the material identified above was the result of mistake or misidentification.

3. The name, address, and telephone number of the subscriber.

4. A statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located. If the address is outside the United states, then the subscriber must consent to jurisdiction in any judicial district in which the service provider may be found, and must agree to accept service of process from the person who submitted the takedown notice.

5. The signature of the subscriber.

Counter-notices must be submitted carefully, and should only be submitted after the claim of infringement made in the takedown notice has been found to be incorrect by a copyright attorney. If your material has been removed in response to a takedown notice, please do not hesitate to contact me to discuss your situation.