Digital Millennium Copyright Act and Internet Service Providers
The Digital Millennium Copyright Act (DMCA) was enacted in 1998 to bring the United States up to date with technology and with international intellectual property treaties.
While there are many aspects of the DMCA, one of the most important to web hosts and internet service providers (ISPs) involves the “safe harbor” provisions. Under this provision, if a content provider:
- Does not have actual knowledge that the material was infringing another’s copyright;
- Is not aware of facts or circumstances where infringing activity is apparent; and
- Acts quickly to remove the content, once made aware of it,
Then the content provider will not be liable for monetary damages for copyright infringement.
If your company is a web service provider who wishes to take advantage of the “safe harbor” provisions, you will need to ensure that your organization is registered with the Copyright Office’s DMCA website. This way, you will have a designated agent on file in a public database, so that you will be able to receive notices of copyright infringement, otherwise known as “takedown notices.”
DCMA Takedown Notices
One of the most common ways we see the DMCA’s “safe harbor” provisions in use today is through takedown notices submitted to service providers. If a copyrighted work is being hosted on a website against the wishes of the copyright holder, the copyright holder can send a takedown notice to the website.
This notice should include:
- The identity and contact information of the person who is requesting the copyrighted material being removed
- Information of how the individual is related to the copyrighted material. For example, does this person own the copyright, or were they assigned the right to enforce it?
- Information about the copyrighted material being infringed, including what the copyrighted material is comprised of and a link to the page it is hosted on
- A statement that this information is accurate, under penalty of perjury, and
- A physical or digital signature
Once a service provider receives a takedown notice, they must investigate the claims in a timely fashion. Responses to a takedown notice may include:
- Removal of the copyrighted material, or
- Disabling access to the copyrighted material, such as deactivating links
If a third-party user is the subject of multiple verified takedown notices, a service provider may decide to terminate that individual’s ability to access their site.
Because copyright is automatically granted, you will be able to enforce certain rights with a DMCA takedown notice, even if it is not registered with the US Copyright Office. This has led to the DMCA to be a useful tool in controlling the spread of “revenge porn” – compromising selfies sent by one individual to another in confidence, which are later posted to websites and visible to anyone online.
Because the individual who took the picture is the copyright owner, that person is able to contact websites like Google or Tumblr and ask for the material to be removed under the DMCA.
Penalties for ISPs That Ignore a DMCA Takedown Notice
If you receive a DCMA takedown notice but fail to act accordingly, you may lose protection of the “safe harbor” provision and can be found liable for copyright infringement.
In 2014 and 2015, the safe harbor provision was put to the test. BMG Rights Management, LLC, filed a lawsuit against Cox Communications Inc., an internet service provider.
BMG’s enforcement arm, Rightscorp, attempts to pursue individuals who download music online without paying for it. Rightscorp will send emails requesting individuals settle these claims for $20-30 per song. However, the only way to trace these individuals is through the ISP. BMG sends copyright notices to ISP providers with messages to pass along to the users. Other ISP providers would simply forward these emails as instructed. However, Cox did not.
BMG then sued Cox, and won $25 million. Cox’s refusal to forward these messages – a reasonable step, according to the judge, to implement a policy to terminate repeat infringers – meant that it was no longer protected by the “safe harbor” provisions, and would therefore be liable for the copyright infringement of its users.
This was the first case of its kind, and it may embolden other copyright holders or enforcement agencies to be more aggressive in ensuring their messages reach their intended audience.
If you receive a DMCA notice and have questions about determining the proper course of action to ensure your organization is eligible for the DMCA’s “safe harbor” provisions, contact an experienced internet attorney today to understand your legal obligations.
Creating a DMCA Compliance Policy
You should create a DMCA compliance policy if your organization:
- Has a website that allows third-parties to post content, such as social media posts or blog comments;
- Hosts websites; or
- Provides internet services to users.
This policy should include:
- Notice and takedown procedures for receiving, processing, investigating, and acting when a DMCA takedown notice is received;
- Provisions to routinely monitor your site and automatically remove copyrighted material; and
- A policy to terminate accounts of or access by repeat infringers.
Many companies have gone one step further, and made their DMCA reporting and compliance policies exceedingly user-friendly and easy to understand.
For example, social media sites like Facebook, Twitter, and Pinterest have streamlined their DMCA compliance policy by creating easy to use fillable forms for copyright holders who believe their work was uploaded without permission.
Similarly, web hosting company A2 Hosting’s DMCA policy walks its users through the elements of a proper takedown notice, listing very clearly the elements needed for an actionable request.
When you create your company policy, you should remember that many people seeking to enforce their copyrights online through the DMCA are not lawyers and may have limited understanding of how the act works. Creating a user-friendly system will make your process of sorting out the real notices significantly easier.