In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), changing the landscape of U.S. copyright law in several significant ways. Notably, the DMCA developed protections for copyright owners against unauthorized access, created a notice-and-takedown system, and made it unlawful to provide false copyright management information or to remove or alter that type of information in certain circumstances.
Background
The DMCA consists of five titles:
– WIPO Copyright and Performances and Phonograms Treaties Implementation Act
– Online Copyright Infringement Liability Limitation Act
– Computer Maintenance Competition Assurance Act
– Miscellaneous Provisions
– Vessel Hull Design Protection Act
DMCA Safe Harbor
The DMCA provides unique “safe harbor” protection for service providers from copyright liability from infringement by their users. This protection only applies to those who qualify as service providers and meet specific eligibility requirements under the Act. The DMCA grants service providers safe harbors for four types of activities:
– Providing networks and infrastructure.
– Caching of infringing activities.
– Hosting and storage of infringing activities.
– Linking, directing, and providing other tools that point users to infringing activities.
For example, the DMCA would protect a website that passively hosts user content when users upload copyrighted materials. However, safe harbors only apply when the user is a copyright infringer. If the service provider engages in infringing activities, it risks losing the safe harbor protections.
The Notice-and-Takedown System
The DMCA implements a notice and takedown system that enables copyright holders to help locate and remove material infringing on their copyrights from the internet. To start a takedown, a copyright owner (or the owner’s agent) must send a takedown notice to the service provider requesting that the provider remove infringing material. Takedown notices must be provided to a service provider’s designated agent in writing and include the following as required by 17 U.S.C. § 512(c)(3)(A):
– A physical or electronic signature of the copyright holder or a person authorized to act on behalf of the copyright holder.
– Identification of the specific copyrighted work(s) claimed to have been infringed.
– Identification of the material to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material (e.g., URL)
– Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and e-mail address.
– A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized.
– A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright holder.
After a takedown notice, a service provider and the alleged infringer are notified. He or she may then send a counter notice to the service provider explaining why he or she disagrees with the copyright owner. After receiving a counter notice, the service provider must forward that counter notice to the person who sent the original takedown notice. Once the service provider has received a valid DMCA counter-notice, they must wait 10-14 days, and if no lawsuit is filed in that time frame, the material will remain down. However, the service provider must re-activate or allow access to the alleged infringing activity if no suit is filed.
Anti-circumvention
Many copyright owners embed protection mechanisms within works to protect their works. The DMCA makes circumventing these mechanisms illegal, with few narrow statutory exemptions. The DMCA further prohibits manufacturing, importing, offering to the public, providing, or otherwise trafficking in certain circumvention technologies, products, services, devices, or components.
If you have a DMCA dispute, contact us to learn how we can help.
