An Overview of DMCA Take Down Policy - ABA YLD 101 Practice Series

By Jeremy M. Roe

Companies that invite or allow visitors to their websites to post material, such as video, photographs, or even simple written comments, run the risk that a visitor will post something that infringes someone else's copyright.  Under traditional copyright law, the website owner could be held liable as a publisher of the infringing material. 

Title II of the Digital Millennium Copyright Act (DMCA) added a section to the Copyright Act, 17 U.S.C. 512, called the Online Copyright Infringement Liability Limitation Act (OCILLA), which provided a "safe harbor" for online service providers whose users posted materials that were accused of copyright infringement.   The definition of "online service provider" includes anyone who hosts a website where materials can be posted or stored at a user's direction.  As long as a web host does not receive a direct financial benefit from the infringement and does not have actual knowledge of the infringement, it can avoid liability by having specific procedures in place to address infringement claims.

A web host that wishes to take advantage of the safe harbor defense must first register a designated agent with the Copyright Office.  The Copyright Office hosts a directory of designated agents, organized by service provider name, available on the Internet at www.copyright.gov/onlinesp/list/a_agents.html

If a copyright owner believes that something on the website infringes its copyright, it sends a notification to the designated agent.  The notification must include a variety of technical matters regarding the filer’s authorization and good faith basis for submitted a notification, plus sufficient identifying information regarding the work claimed to have been infringed and identifying information about the material claimed to be infringing or to be the subject of infringing activity.  17 U.S.C. 512(c)(3)(A).

On receipt of proper notice, the web host is required to take the accused material off its website and notify the user who posted it that the material has been accused of infringing and removed.  The user has the option to submit a counter-notice if he believes that the material was improperly taken down, and the web host must inform the complaining copyright owner.  A counter-notice must include a statement that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification.  17 U.S.C. 512(g)(3).

The web host must then wait at least 10 days before proceeding.  If the copyright owner does not file an infringement lawsuit against the user within 14 days after the counter-notice, then the web host must put the user's material back up on the website.

A company that operates any websites where users can contribute content of any sort should promptly register a designated agent, and should develop and implement a plan to respond to any takedown notifications that agent receives.  Without a designated agent and appropriate takedown procedures in place, the web host is vulnerable to copyright litigation and potential liability.

A company that is concerned about its copyrighted content being posted without authorization on the Internet should be prepared to submit a proper and complete takedown notification, and to follow up if necessary with a lawsuit against a user who submits a counter-notice and continues to infringe.

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About the Author

This summary is adapted from an article by Daniel J. Schaeffer, DMCA Take Down Policy—An Overview, which can be found here:  www.nealmcdevitt.com/newsletter.

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