Have a Website? Consider Implementing a DMCA Policy!

In 1998 Congress enacted the Digital Millenium Copyright Act (DMCA) to address the copyright issues arising because of Internet usage.  Section 512 of the DMCA protects online service providers (OSPs) and website operators from inadvertent copyright infringement.  For OSPs, this protection involves:

  • Taking them off the hook for transient infringing transmissions passing through their computers;
  • Provides a safe harbor if the ISP promptly removes infringing material at the owner’s request; and
  • Relieves them from liability for unknowingly linking to a site that does contain infringing material, except they may be required to identity an alleged online infringer through a subpoena.

For website operators, the DMCA provides that website operators are immune from copyright infringement if:

  • They don’t have actual knowledge of the infringing materials on their services;
  • Don’t receive a financial benefit directly attributable to the infringing materials; and
  • They implement and comply with any takedown procedure. This means that the website should include wording stating that it adheres to the DMCA and provide contact information for a DMCA agent.

One of the first cases to test the DMCA’s reach involved Google/You Tube as the Defendants in a lawsuit brought by Viacom. Viacom argued that YouTube actively encouraged the distribution of infringing content owned by Viacom, it was disqualified from immunity under the DMCA.  Google argued that it and YouTube has immunity under the DMCA’s safe harbor provision.  Google prevailed. Viacom Int’l, Inc. v. You Tube, 676 F.3d 19 (2d Cir. 2012).

          The DMCA Take Down Procedure   

All website operators should ensure that the content they use on their website is original.  If it is not, then they should get permission from the copyright holder to make use of that content or use the content only under a license. When hiring a website developer, it is important to ensure that the developer does not use works (photos, sound recordings, images, etc. owned by another in the website).  Such unauthorized usage of photographs or other images could result in problems for the website owner down the road.  Any authorization the website designer claims he has may not accrue to the website owner.  Accordingly, specific authorization for the website owner to use such content may be required.

Where a website or platform displays user-generated content over which the website owner has no oversight, the owner should have a DMCA policy in place.  This policy will ideally explain how the website owner manages copyright complaints and takedown notices. The website owner presumably expects others to respect and honor its own intellectual property rights.  It is only proper that the website owner will respect the intellectual property rights of others by promptly removing or disabling access to any allegedly infringing content upon receiving a proper take down notice.  The DMCA policy should be part of the website’s term and conditions.

To commence the “takedown” or “removal” of infringing content by a third party such as a website owner or OSP, the owner of the allegedly infringing must send a notice, typically to the designated DMCA agent.  Any old notice won’t work.  It must meet certain criteria known as elements to qualify as a proper DMCA takedown notice.  These elements are:

  • The signature of the copyright owner’s owner or agent authorized to act on behalf of the owner.  The signatory should designate whether they are the copyright owner or the owner’s agent.
  • Clear identification of the work(s) being infringed.  This may include providing a link to a website or other location where the work is being legally displayed.  It is suggested that the copyright owner attach a copy of the copyrighted work a copy of the registration.
  • Clearly specifying the infringing activity and the location of the infringing activity on the Site.  This includes providing the web address (URL) indicating where the infringing activity is occurring.  A copy of the infringing material or web page where the infringing material resides should also be provided to aid in the removal of the infringing material.
  • Contact information: The takedown notice should contain the notice sender’s contact information including the sender’s email address, address, and telephone number.

The following two elements relate to the takedown notice sender’s forthrightness and honesty.  The Site owner is under no obligation to comply with a false or exaggerated takedown notice or any other defective notice.

  • Good faith belief: The takedown notice should include a statement that the notice sender has a good faith belief that use of the material in the manner complained of is not or has not been authorized by the copyright owner who has the sole right to authorize such usage.
  • Accuracy of the notice sender’s statements: The takedown notice should include a statement that the information in the takedown notice is accurate, and under penalty of perjury, that the notice sender is authorized to act on behalf of the copyright owner. Providing false information and making a false claim is punishable under federal law, and those making false notices can be sued and held civilly liable.

The foregoing applies to takedown notices sent to website owners.  However, OSPs can also become involved should they receive a takedown notice.  Here, the OSPs often do not determine if there is actually infringement occurring on the website accessible through the OSP.  Instead, they typically make sure that the DMCA notice contains the information required by law.  If they take down content, the website owner must be notified.  At that the point, the website owner can ask for more details and even file a DMCA Counter-Notice if a false or erroneous DMCA claim is expected.  As with the good faith and accuracy statements of the takedown notice, the counter-notice must also include similar statements.

Finally keep in mind that a  takedown notice may not necessarily be making a valid a claim about copyright infringement.  For example, does the notice refer to content on the website that is actually from the public domain?

Call to Action

Have a website but no DMCA policy?  Have you received a takedown notice? Do you believe a website owner is infringing your copyright?  Contact us at 305-279-4740 or sdtroy@troyandschwartzlaw.com or DM me on Linkedin for a complimentary consultation.









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