Digital Millennium Copyright Act (DMCA)
With platforms and mobile apps providing online services that allow users to generate or upload content, copyright infringement is a concern for both copyright owners and online service providers. Copyright owners want to protect the rights to their works and recover damages when those works are infringed upon. However, online service providers simply cannot fairly be held liable for every piece of infringing content users post, particularly when providers are not aware of that content. Online service providers would be forced to spend an impossible amount of time and resources to properly monitor user content, rendering business economically infeasible. The compromise enacted by Congress is known as the Digital Millennium Copyright Act (DMCA).
To strike a balance between protecting copyright owners and service providers, the DMCA strives to protect the rights to copyrighted works without running online service providers’ businesses into the ground by providing specific mechanisms for both copyright owners and online service providers. A DMCA takedown notice is one such mechanism that can be issued by copyright owners. Another mechanism is the DMCA’s safe harbor provisions that online service providers can follow to remain protected against secondary liabilities.
What Is a DMCA Takedown Notice?
To enforce their rights, owners of copyrighted works can provide written notices to request online service providers to remove content that infringes on those owners’ copyrighted works. The DMCA requires the takedown notices to include specific information to allow the online service providers to locate and remove the allegedly infringing content. Although online service providers may not necessarily be the party who generated the content, online service providers must comply with the DMCA takedown notices in order to remain exempt from copyright infringement liabilities under the DMCA safe harbor protections.
A DMCA takedown notice must include certain information to be enforceable. This includes:
- Physical or electronic signature of the copyright owner or authorized agent of the owner;
- Identification of each copyrighted work claimed to have been infringed;
- Description or information of where the claimed infringing content is located, such as the URL;
- Contact information of the copyright owner or authorized agent of the owner, including the name, address, telephone number and e-mail (if any);
- A statement that the person sending the takedown notice has a good faith belief that the use of the content in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement under penalty of perjury, that the information contained in the DMCA takedown notice is accurate.
Sending a DMCA Takedown Notice
A DMCA takedown notice is typically sent to the host of the online service provider. The host can be located by looking up the IP address of the online service provider’s website using ARIN Whois Service or a similar tool. Once the host is identified, the host should provide details on where to submit the takedown notice. The copyright owner may also send a takedown notice directly to the individual infringer who provided the infringing content to the online service provider.
Note that the DMCA only applies to copyrighted material hosted in the U.S. However, international service providers may honor a DMCA takedown notice.
How Should a Party Respond to a DMCA Takedown Notice?
Upon receiving a takedown notice, the receiving party must promptly remove or disable access to the claimed infringing content or risk a lawsuit for copyright infringement. For online service providers, a copy of the takedown notice should be promptly forwarded to the user who is allegedly infringing. In addition to sending a copy of the takedown notice to the posting user, online service providers must inform the posting user that they may submit a counter notice if they believe their content was mistakenly taken down or misidentified as infringing content. Users should carefully review the takedown notices and carefully consider whether to send counter notices.
DMCA Counter Notice
The DMCA permits a party to contest a takedown notice by sending a counter notice to the sender of the takedown notice as well as the online service provider. The counter notice must include:
- Physical or electronic signature of the party who is contesting the takedown notice;
- Identification of the content that was removed;
- Description of where the content was located before removal, such as the URL;
- Contact information of the party who is contesting the takedown notice, including the name, address, telephone number and e-mail (if any);
- A statement under penalty of perjury that the contesting party has a good faith belief that the content was removed by mistake or misidentification; and
- A statement that the contesting party consents to the jurisdiction of the Federal District Court where the contesting party is located, or where the online service provider is located if contesting party is located outside the United States, and that the contesting party will accept service of process from the person who provided the takedown notice or an agent of such person.
Online service providers must then forward a copy of the counter notice to the sender of the DMCA takedown notice. The removed content must be restored within 10-14 days of receiving the counter notice, unless the copyright owner initiates a lawsuit within that period.
What Is the DMCA Safe Harbor?
Online service providers who host content provided by users (e.g., social media platforms, peer-to-peer sharing platforms, forums, etc.) may be exempt from secondary liability under the DMCA safe harbor provisions. The purpose of the safe harbor is to protect such providers when they are unaware of the infringement and are not actively engaging in the infringement. As a result, providers cannot have actual knowledge of the infringing material or be aware of “red flag” conduct that may indicate infringement.
The safe harbor provisions are applicable to online service providers that allow users to post content. Another safe harbor provision is applicable to online service providers that simply transmit, route, connect or store user material through an automatic technical process, without the online service provider modifying or selecting that process.
In order to take advantage of the exemption from secondary liability, an online service provider must have a DMCA policy, which includes the contact information for its designated copyright agent for service of copyright claims and its “repeat infringer” policy. Most importantly, to remain under the DMCA safe harbor protections, the online service provider must implement the procedures for the DMCA takedown notice process and repeat infringer policy.
What is a Repeat Infringer Policy?
A repeat infringer policy is the procedure that the online service providers adopt and implement to deter users from repeatedly infringing on any copyrights. Users are generally informed of the DMCA takedown procedures and repeat infringer policy in the online service provider’s terms and conditions, copyright policy or other appropriate location on the online service provider’s website.
Online service providers must reasonably implement the adopted repeat infringer policies to remain eligible for the DMCA safe harbor protections. To reasonably implement such policies, online service providers must terminate the accounts of users who are deemed as repeat infringers or are repeatedly charged with infringement as well as retain an accurate record of users who have allegedly infringed on copyrighted works.
Damages for copyright infringement liability can be calculated by actual damages or statutory damages. Actual damages can be determined based on any actual damages the copyright owner suffered from the copyright infringement and any profits made from the infringement.
Alternatively, copyright owners can seek statutory damages. Statutory damages for copyright infringement ranges from $750 to $30,000 per copyrighted work. For willful copyright infringement, the statutory damages can increase up to $150,000 per copyrighted work.
Note that the Copyright Act also allows the prevailing party to seek reasonable attorneys’ fees for copyright infringement if the copyright owner has registered the copyright with the US Copyright Office. Further, an award of attorneys’ fees is up to the discretion of the court. Courts judge an application for attorneys’ fees in copyright infringement cases on the “objective reasonableness” of the parties’ arguments: parties advancing reasonable arguments are more likely to be awarded attorneys’ fees; similarly, a party advancing an unreasonable position is likely to pay the prevailing side’s attorneys’ fees due to its obstinance. Courts also consider a party’s litigation misconduct or overaggressive assertion of copyright claims when awarding attorneys’ fees. Parties are therefore encouraged to litigate only when they have reasonable arguments, or risk paying their opponents’ fees as a result.
The DMCA safe harbor and takedown notice provisions are complex. The parties must comply with the specific requirements in order to receive protection and failure to do so can result in significant liability. Best practice for following the DMCA requirements and implementing the repeat infringer policy is for online service providers to develop internal guidelines in consultation with an experienced copyright attorney.
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