Posted by Amanda Brice Aug 21 2012, 12:01 am
In recent weeks, I’ve seen a number of posts by non-attorneys on blogs, writers’ loops, and forums that have left me scratching my head. So I’d like to take today to go over the basics of the Digital Millenium Copyright Act and how to do a takedown notice.
The Digital Millennium Copyright Act (DMCA) is one of the best-known and most-controversial pieces of legislation in recent years. It is a United States copyright law which implements two 1996 World Intellectual Property Office (WIPO) treaties. It criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (commonly known as digital rights management, or DRM) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also heightens the penalties for copyright infringement on the Internet.
The DMCA amended Title 17 of the U.S. Code to extend the reach of copyright, while also limiting the liability of online providers from copyright infringement by their users.
The DMCA has passed by a unanimous vote in the Senate, and signed into law by President Bill Clinton on October 28, 1998. This law only applies in the US, however, a number of other countries have similar provisions in their copyright law. For example, on May 22, 2001, the European Union passed the EU Copyright Directive (EUCD), which is similar to the DMCA.
Perhaps the most important provision for authors is the so-called Safe-Harbor Provision, which exempts web hosts and other online service providers from liability for contributory copyright infringement. Before the DMCA, such online providers could be used for contributing to the infringement simply because they provided the hosting the unlawful content. The “Safe Harbor” provision exempts online providers as long as they meet certain qualifications and follow certain steps to remove the allegedly infringing material.
TAKEDOWN NOTICE PROCESS
Why is this important for authors? Because it provided the groundwork for the DMCA 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.
If you discover that your copyrighted work is being infrigned, you must first determine that the work is infringed. It may be necessary to consult an attorney to verify. Once you’ve determined this, then take screenshots or otherwise preserve the infringing site, which will be useful in the case of a dispute later.
Next, locate the host of the site where the work is located, using a service such as WhoIsHostingThis or Domain Tools. Then send the notice to the registered DMCA agent or to the host’s abuse team. Assuming you’ve sent a complete notice, your work should be removed in a couple of business days.
By 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 her representative — is sent to the service provider’s DMCA agent. All service providers must appoint such an agent, and register the agent with the U.S. Copyright Office.
There is no standard format for the takedown notice, and any letter (whether physical or digital) that contains all of these elements will suffice. However, many filers use a form letter to speed the process along.
So what happens next?
Once the registered agent receives the takedown notice and has verified that it is a complete notice, then they either remove or disable access to the infringing work. Although this can be done many ways, it’s usually accomplished by deleting the allegedly infringing material and/or disabling access to the entire website.
You will note that the registered agent of the online provider only verifies the completeness of the claim — not the validity — before disabling access to the infringing work.
At this point, the online provider (web host) contacts the client involved to inform him why material has been removed from the website or the website itself disabled to give him the opportunity to respond.
The client whose website has been disabled has two options. First, they can do nothing. If the notice was valid and the takedown just, they can simply do nothing and accept that the work has been disabled. Of if they work was not an infringement and the notice was in error or malicious, the client can file a counter-notice.
The counter-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 filed the takedown notice.
No standard format is required, but many parties choose to use a template for the counter-notice.
The online provider must then notify the person who filed the original takedown notice of the existence of the counter-notice, then within 10-14 business days restore the work that was taken down. During that 10-14 business day period, the copyright holder has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline.
In extreme cases where the notice is knowingly false, the online subscriber/counter-notice filer can file suit against the original notice filer (copyright holder) for damages, including attorney’s fees and court costs.
It is important to file a counter-notice if the takedown was sent in error or maliciously, even if you don’t care whether the material is restored. Web hosting companies are required to ban and delete accounts of repeat infringers. If you receive too many DMCA notices (as in the case of the LendInk matter), you may find your entire account disabled, even if the claims in the takedown notices were invalid.
As I stated earlier, the DMCA is a US law, and only applies to online providers located within the US. The biggest frustration for many authors is that often pirates operate outside US jurisdiction, and thus claim that the DMCA does not apply to them.
While this is true, other countries have adopted similar takedown system. For example, the European Union offers a similar procedure through the European Directive for Electronic Commerce. Australia also has a notice-and-takedown system. Canada, on the other hand, does not have a takedown system, but also provides complete safe harbor for online providers. In other words, the only way to compel an online provide to remove your unauthorized copyrighted work is with a court order.
Many authors find utilizing an anti-piracy service, such as Muso, is an effective way to get unauthorized copies of their work off of the internet. While Muso is unable to eliminate all instances of piracy (particular those located in countries without an effective takedown system) and new sites crop up every day, this service can be a real help so that you don’t have to locate every instance of piracy and issue all the notices yourself.
Oh, and by the way, since I first started drafting this post, it’s been announced that due to a generous fundraising campaign to raise money to allow disabled Army veteran to respond to the erroneous takedown notices filed against his site, LendInk is coming back!
Moral of the story, if you’re going to handle takedown notices yourself rather than relying on your publisher or an anti-piracy service, be certain to do your due diligence to ascertain that what you’re complaining about actually is piracy. When filing a DMCA takedown notice, you’re required to state under penalty of perjury that your claim is valid. When in doubt, checking with the No Pirates blog is a good place to start.
Amanda Brice is an intellectual property attorney for a large federal government agency by day. In her spare time, when she’s not wrangling an 8-month-old and a 2 1/2-year-old, she writes young adult romantic mysteries. Her latest release is Pointe of No Return. Learn more at www.amandabrice.net.