The Digital Millennium Copyright Act (“DMCA”) has been a reality for online business for well over a decade now. For most of us, it has always been part of our experience online. Many of us have seen the impact when a YouTube video is removed or a website can’t be found because it was removed. Today, let’s talk a little about how that works, and what it may have to do with you.
The DMCA, in part, provides some protections to those internet service providers who have user generated content on their site. This is true of YouTube, Google, Bing, Yahoo, the GooglePlay Store, iTunes, and your blog (yes, comments are user generated content). The problem the DMCA attempts to resolve is: how can online service providers be liable for the actions of others? In an attempt to protect copyright holders, the DMCA created a mechanism by which the copyright holder can notify the online service provider where the infringing content is located.
Today, let’s focus on the process of creating a DMCA notice. You may be the one issuing the notice or the one receiving the notice, but either way, any notice under the DMCA should contain the following requirements:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
What Happens When a Service Provider Receives the Notice
That depends. Different online providers have different policies. Some immediately remove the allegedly infringing content unless a counter-notice or other evidence that the work is not infringing is delivered. Some online service providers put the two parties in touch and ask them to work it out together to resolve the complaint (while reserving the right to remove the content). Some service providers have a policy of blocking a user’s account if several notices are received and go unresolved(three strikes and your out). In all cases, the Service Provider should have some type of copyright infringement policy that is described in its term of use (you know, that document you read for every site you use). If you are using a particular service provider (e.g., YouTube, Social Media, iTunes, GooglePlay), you need to understand how the process works. After all, you may be on either end of it.
Understand, not all takedown notices are legitimate. This is why some service providers do not remove content for a single infraction. Some copyright holders do not completely understand their rights and may file a notice with a service provider when there is no infringement. For other intellectual property rights holders, this is a business practice because they do understand that a take-down may be imminent on filing the notice. It is important, because of this, for you to understand your legal rights both in sending a DMCA notice and what happens if you receive one.
What Do You Need to Do
If you are the victim of a take-down notice, especially if it is unwarranted, you have rights. Next week, we will talk about the DMCA Counter-Notice that is outlined in the law, but the beginning of your process should be to understand the process of your online service provider.
Protecting Your Business
Until next week, if you have any type of online business that displays or thrives on user generated content, you may want to look into the DMCA copyright infringement policies of sites you use or with which you are familiar. Remember, the DMCA outlines specific requirements for a notice, but each online service provider will still have a process of responding to such notices. You can look at various sites and see what you think makes sense. That may help you develop your own policy and procedure for what to do if user generated content on your platform infringes on another’s rights. You want to have the procedure in place to deal with the copyright infringement so you can take advantage of the safe harbors provided by the DMCA.