What Is the DMCA?
The Digital Millennium Copyright Act (DMCA) was signed into law in 1998 by President Clinton. It enables copyright owners to request the removal of infringing content on the Internet while providing web hosts and online service providers a safe harbor from copyright infringement claims by creating a notice-and-takedown system.
The DCMA notice-and-takedown system may be used by copyright holders to get copyright-infringing material taken down from websites. For example, your copyright may be infringed when, without your permission, your photo or video is reposted, a logo or graphic you created is use, a song your wrote or performed is posted or shared, or a creative work which you have purchased and own the rights to is reposted, shared, or used. This infringing material is often uploaded by users onto websites owned by third parties, such as online services providers (e.g., Spectrum), search engines (e.g., Google), web hosts (e.g., GoDaddy), and website operators (e.g., Amazon).
These third-party providers qualify for safe harbor protection from liability for the activities of their users by providing a DMCA takedown notice procedure to copyright holders and cooperating with copyright holders to remove infringing content, if the third parties meet certain conditions. These conditions include: having no knowledge of or financial benefit from the infringing activity, having a copyright policy and providing proper notification of that policy to its users and subscribers, and listing an agent to deal with any copyright complaints.
A DMCA takedown notice (also known as DMCA request, DMCA notice, or DMCA complaint) is a legal request to remove copyright-protected online content which is sent from a copyright holder to the person who unlawfully posted the content or the website, search engine, or web host on or for where the content was posted. DMCA notices must include certain language and information or the provider may refuse to act on them. The copyright owner must provide to the third-party provider the following information:
- the name, address, and signature of the complaining party (copyright owner or agent)
- identification of the infringing materials and where to find them on the Internet
- sufficient information to identify the copyrighted works (While registering a copyright is not required, it is often helpful in these instances to have a registration number.)
- a statement by the copyright owner that he or she has a good faith belief that there is no legal basis for the use of the infringing materials
- a statement that the notice is accurate and that, under the penalty of perjury, the complaining party is authorized to act on the behalf of the copyright owner.
Once the provider receives the DMCA notice, it must remove or disable access to the infringing material and inform the user responsible for uploading the material after the fact.
The DMCA also requires a counter-notification procedure, which consists of a written notice, under penalty of perjury, to the third-party provider that the material was incorrectly removed based on a good faith belief that the material is not infringing. If the provider receives a counter-notice from the user, it must notify the copyright owner of the objection. The copyright owner then has 14 days within which it must initiate a lawsuit in federal court. If the copyright owner does not file a lawsuit and inform the provider of such, the provider must reinstate the removed material within 14 days of receiving the counter-notice.
If a third-party provider refuses to take proper action pursuant to the DMCA notice-and-takedown procedure, it opens itself up to potential liability for assisting in the user’s copyright infringement.
Author: Karen Y. Kim
This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.
