Whenever a new technology comes along that changes the way we consume information—by which I mean read books, watch movies, listen to music, and so on—the entrenched interests that own a substantial amount of the copyrights take notice. "Image deleted DMCA on black" by Lexein (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsSometimes, they fight back against the new technology, but it is usually a losing battle. This applies to devices like the VCR and to software and services made possible by the internet.

Congress passed the Digital Millennium Copyright Act (DMCA) of 1998 to enable copyright owners to enforce their rights against people who post infringing material online. This can be a useful tool for copyright owners, but it is also subject to abuse on all sides. Freelancers should have an understanding of both the rights they may enforce and the liabilities they could incur under the DMCA

Litigating over New Technology

In one of the most famous cases of “Big Copyright” (I hope that doesn’t catch on) using the courts to try to shut down a new technology, several major movie studios sued Sony to stop its production of the Betamax VCR. The case went all the way to the Supreme Court, which ruled in Sony’s favor in 1984, finding that recording television programs for one’s own later viewing is Fair Use rather than copyright infringement.

Other efforts have succeeded against specific companies, products, or services, but they generally have not stopped the advancement of a new technology. A lawsuit brought by the recording industry against Napster sought to block its file-sharing service, which allowed users to share digital music files with each other. They may have succeeded in shutting down Napster’s network in 2001, but online file-sharing continues to this day through systems like BitTorrent. As I discussed in an earlier post, the publishing industry was not successful in shutting down Google Books, which it claimed infringed publishers’ copyrights by making snippets of books available online to users.

"Beta video cassette" by Larry Gilbert [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via Flickr

What Is the DMCA?

Congress enacted the DMCA in 1998 in order to implement two World Intellectual Property Organization (WIPO) treaties: the Copyright Treaty and the Performance and Phonograms Treaty, both of which took effect in 1996. It is a substantial law—the final bill, as enacted, is sixty pages long—that deals with a wide range copyright infringement activities using digital technology and on the internet. One of its most important provisions deals with allegedly infringing material posted by an internet user, but hosted by an online service provider (OSP).

The “Safe Harbor” Rule

This rule protects OSPs from liability for merely hosting material posted by a user, provided the OSPs follow certain procedures. OSPs covered by this rule include internet service providers (ISPs) like Time Warner, AT&T, and Comcast, as well as online services like Google, YouTube, and Facebook.

In order to have the protection of the Safe Harbor rule, found in Title 17 of the U.S. Code at § 512(c), an OSP must do the following:
– Designate an agent who may receive notices from copyright owners about infringing material, and make that agent’s “name, address, phone number, and electronic mail address” easily accessible; and
– Upon learning that it is hosting or storing infringing material, “act[] expeditiously to remove, or disable access to, the material.”

OSPs that allow users to upload pictures, videos, and other media must clearly designate their DMCA agent on their website. The U.S. Copyright Office also maintains a list of registered DMCA agents.

DMCA Takedown Notices

The method by which a copyright owner notifies an OSP of the presence of infringing content is known as a “DMCA takedown notice.” Section 512(c)(3)(A) establishes the required elements of a valid takedown notice:
– The signature—physical or electronic—of the copyright owner, or someone authorized to act on their behalf;
– A clear identification of the copyrighted work or works that have allegedly been infringed;
– Identification of the material hosted by the OSP that allegedly infringes the copyright, with enough information to allow the OSP to locate it;
– Contact information for the party alleging copyright infringement;
– A statement that the person signing the takedown notice “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”; and
– A statement that the information presented in the takedown notice “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.”

All of these elements must be present in a single notice presented to the OSP. Upon receipt of a valid takedown notice, the OSP is obligated to remove or disable access to the allegedly infringing material. It must give notice to the person who uploaded the material, who has an opportunity to dispute the takedown.

"New youtube DMCA take down" by Todd Barnard [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via Flickr

Appealing a Takedown

The procedure for disputing a takedown notice is found in § 512(g). Once the user receives notice of the takedown, they can send a counter-notice to the OSP, which must include:
– The user’s physical or electronic signature;
– The user’s contact information;
– Identification of the removed or disabled material, as well as its location before the OSP removed or disabled access to it;
– A “statement under penalty of perjury” of the user’s “good faith belief” that removal of the material was in error; and
– A statement consenting to the jurisdiction of the U.S. federal district court for the district where the user lives, or where the OSP is located if the user is outside the U.S.

The OSP then has ten business days to decide whether or not to replace the material or restore access to it.

If the OSP decides to replace or restore access to the material, it must notify the original complaining party, which has ten to fourteen business days to file suit against the user. If no lawsuit is filed in that time period, the OSP must replace or restore access to the material.

Abuse of the Takedown Notice Procedure

A user may be able to bring a civil suit for damages against someone who misuses DMCA takedown procedures. Section 512(f) prohibits “materially misrepresent[ing]…that material or activity is infringing,” but also “that material or activity was removed or disabled by mistake or misidentification.” In other words, a user who falsely disputes a takedown could also be liable for damages.

Courts have determined that copyright owners must assess whether a user who posts infringing material online has a valid defense before submitting a takedown notice. This takes some burden off of ordinary internet users, and discourages copyright owners from sending out takedown notices haphazardly.

A recent decision by the Ninth Circuit Court of Appeals addressed this issue when it affirmed a lower court’s ruling in a somewhat-famous case, Lenz v. Universal Music Corp. The case involved a YouTube video posted by the plaintiff that showed her kids dancing to the Prince song “Let’s Go Crazy.” After Universal sent YouTube a takedown notice, she filed suit against it, seeking a declaration from the court that the video was covered by Fair Use. The court ultimately held that Universal was liable for abuse under § 512(f) because it had failed to consider Fair Use before sending a takedown notice.

Coming soon: Anti-SLAPP laws, commercial speech restrictions, when employers have patent and copyright over employee inventions, and more!

Photo credits: “Image deleted DMCA on black” by Lexein (Own work) [CC BY-SA 3.0], via Wikimedia Commons; “Beta video cassette” by Larry Gilbert [CC BY 2.0], via Flickr; “New youtube DMCA take down” by Todd Barnard [CC BY 2.0], via Flickr.