Take Down Notices.
If you own, use or host any digital content, then understanding the Digital Millennium Copyright Act is vital to your business.
By Jefferson Coulter
The Digital Millennium Copyright Act (”DMCA”) made several modifications to the Copyright Act in 1998. Approaching the 10-year anniversary of the DMCA coming into force, we have the opportunity to review what it means to copyright holders.
Congress passed the DMCA to update the Copyright Act to take into account developments in new media, such as the internet and DVDs. One of the DMCA’s most far-reaching effects—and one that matters most to both copyright holders and online service providers (like YouTube and AOL)—is Title II, or the Online Copyright Infringement Liability Limitation Act (”OCILLA”). OCILLA creates a safe harbor for online service providers (“OSPs”) against copyright infringement liability if they meet required safe harbor guidelines and promptly block access to or remove allegedly infringing material when notified by the copyright holder or the copyright holder’s agent. This notification is called a “takedown” notice. OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if upon notice from such users claiming that the material in question is not, in fact, infringing. This counter‑notification is called a “putback notice.”
For example, one of our clients recently sent a takedown notice to an OSP that was hosting an infringing version of his web-based software. He complied with the takedown notice provisions. The OSP did not remove his content. Mr. Gill was able to sue this OSP and the OSP must now prove why it should not be held liable. Had the OSP removed the infringing software, it would have had immunity from Mr. Gill’s copyright infringement lawsuit.
What does all this mean to you?
If you host content?
1. Set up a process whereby copyright holders can contact you to send DMCA takedown notices.
a. Make sure there is a contact person in your organization designated to receive takedown and putback notices.
b. Register this contact person with the Copyright Office.
2. Provide immediate notification to users who posted the infringing content advising them of the takedown notice and that you will re-enable the content if they send you an appropriate “putback” notice.
3. If you receive a put-back notice, inform the copyright holder that you will reactivate the content after 10 days.
If you post content?
1. Be sure that you have the right to post content. Either you created it or it falls into one of the following exceptions:
a. It is not subject to copyright (Public Domain),
b. You have permission from the author, or
c. Your posting is “fair use” (such as a review or a critique.)
2. Do not post content created by someone else unless it falls into one of the above exceptions.
If you own content.
1. Register Copyright to your content within 3 months of publishing it.
2. Evaluate using technologies such as Digital Watermarking and Digital Rights Management. While not foolproof, these can help prevent some infringement.
3. Set up strategies to identify infringing users. Such as Google Alert, or other agents that monitor internet content for you.
