Guide To Takedown Notices And The DMCA’s Safe Harbor

Question:

What is a DMCA takedown notice and what should a blogger or Web site producer do if he/she receives one?

Response By → Levine Sullivan Koch & Schulz:

(Posted on June 26, 2008)

A DMCA “takedown notice” is formal notification that content posted on a Web site, blog, or other online forum is in violation of copyright law.  Receipt of such a notice by a “service provider”, such as a Web site operator, blogger, online forum, or other Internet-based host for third-party content, necessitates a prompt response.  Some basic first steps when a DMCA takedown notice arrives:

1.  Evaluate the takedown notice and related content;

2. Depending upon the outcome of that evaluation, remove or temporarily disable access to the content at issue;

3. Notify the original poster of the complaint. 

By way of background, the →Digital Millennium Copyright Act, known as the DMCA, was added to federal copyright law in 1998. The DMCA addresses electronic and Internet-related issues.  One portion of the DMCA includes “anti-circumvention” provisions.  These anti-circumvention rules make it unlawful to avoid copyright protection measures (such as protections against unlawful copying that are built into software, DVDs, CDs and the like).  The rules also prohibit trafficking in devices designed to circumvent such copyright protection measures.  Another portion of the DMCA relates to takedown notices.  This portion creates a “safe harbor” for online service providers (“OSP’s”) against copyright infringement claims relating to third-party posts provided certain requirements are met. 

An OSP that follows the DMCA rules and appropriately removes infringing material, as outlined below, can protect itself against liability. 

Generally, copyright law gives copyright owners the exclusive right to reproduce, distribute, publicly perform, publicly display or prepare derivatives of their work.  In the context of the Internet, loading a copy of a work — such as a file consisting of a photo, news report or video — onto a server is deemed to be reproducing that work.  Similarly, making that work available to Internet users, for example by streaming a video from your server to a user’s computer or permitting the user to download a copy, is deemed to be either distributing, publicly performing or publicly displaying the work.  Subject to important limitations such as fair use, a person who engages in those acts without the copyright owner’s permission may be committing copyright infringement. 

Copyright infringement is a strict liability offense (i.e., the fact that you may have been unaware that your acts constituted infringement or that you acted innocently or unintentionally is no defense).  If you exercise any of the exclusive rights reserved to the copyright owner (i.e., reproducing the work), you are potentially liable for infringement. 

This basic structure of copyright law had the potential to stifle the Internet.  That’s because those providing Internet hosting or forums for third-party content could easily be in violation of copyright law without any intent, fault or awareness concerning the infringing content.  Here’s where the DMCA “safe harbor” comes in.  It enables hosts to avoid liability for infringing content posted by third parties.  However, this safe harbor does not protect those who post infringing content.

To obtain immunity against copyright claims under the DMCA, certain procedures must be followed.

First, the host or Web site proprietor must have designated an agent to receive notices of claimed infringement.  The statute requires that the Web site desiring to benefit from the safe harbor provide the following information on its Web site: the name, address, phone number and email address of the designated agent.  In addition, the contact information for the designated agent must be registered with the Copyright Office.  A form for registering a designated agent is available at http://www.copyright.gov/onlinesp/agent.pdf.  Currently, there is an $80 fee for registering a designated agent.  It is important to remember to update this information promptly when it changes, or else risk losing the protection of the safe harbor.  Indeed, one federal appellate court found that DMCA immunity did not automatically apply where the OSP had changed its designated agent and failed to post an update or amend the registration with the Copyright Office.  For several months, takedown notices to the OSP consequently disappeared into an unmonitored mailbox.

Second, in order to qualify for the safe harbor, a Web site must adopt a policy complying with DMCA takedown procedures, and post the policy in its terms of use.  Many Web site owners also include as part of the terms of use for their Web sites provisions identifying their designated agents and listing the requisite information. 

Finally, the operator must follow specific procedures when it receives a proper notice of possible infringement.  The notification must include six elements:

1. a physical or electronic signature of someone authorized to act on behalf of the copyright owner;

2. identification of the work that has allegedly been infringed;

3. identification of the Web site material that is allegedly infringing;

4. information for the Web site owner to contact the complaining party, such as a postal address, telephone number, or email address;

5. a statement that the complaining party has a good faith belief that the allegedly infringing use is not authorized or legal; and

6. a statement that the information in the takedown notice is accurate and, under penalty of perjury, that the author of the takedown notice is authorized to act on behalf of the copyright owner.

Upon receiving a proper complaint, the Web site operator should “take down” the challenged material “expeditiously,” either by removing the posting or by temporarily disabling access to it, and then take reasonable steps to provide prompt notification to the user who originally posted the allegedly infringing material.  If there is a valid “counter-notification,” where that original poster claims that the material does not infringe a copyright, then the operator must provide a copy of the counter-notice to the person who claimed infringement and restore access to the disputed material after 10 days, but before 14 days, unless the person claiming infringement files a lawsuit seeking a court order.  A proper counter-notification, like the takedown notice, must include specific elements by statute:

1. a physical or electronic signature of the third party poster or “subscriber”;

2. identification of the material that was removed or disabled from the Web site;

3. a statement under penalty of perjury that the subscriber has a good faith belief the challenged material was misidentified or that the notification was mistaken; and

4. the subscriber’s name, address, and telephone number, along with a statement that the subscriber submits to jurisdiction in federal district court and will accept service from the person who filed the notification.

It is important to note that the safe harbor protections do not apply where the Web site actually knows or should know that the posted material is infringing, or otherwise receives a financial benefit directly attributable to the infringement. Caveats aside, however, the DMCA offers significant protections for websites against liability for copyright infringement by others - so long as sites follow comply with the requirements of the DMCA, including the detailed take-down process.