The Digital Millennium Copyright Act, better known as the “DMCA,” is a federal law in the United States that addresses user-generated copyright infringement online. The DMCA is a critical tool for any online business that allows users to upload anything to its platforms because the law provides immunity from copyright infringement claims based on content uploaded by users. Put another way, Instagram is not responsible for images uploaded by users to their pages. However, this immunity comes with a price – a compliance procedure you must follow.
DMCA Compliance Process
The DMCA compliance process serves a specific purpose – to create an informal procedure for copyright owners, online businesses, and users posting content to resolve copyright infringement disputes informally. The process consists of specific steps each party must take before the dispute can be taken up in a formal lawsuit. Let’s take a closer look at the steps.
Step 1 – The DMCA Agent
Section 512 of the DMCA “code” requires businesses to designate an individual to act as the contact point during the compliance process. The person, known as the DMCA agent, receives all complaints from copyright holders. A business can select anyone in the United States to act as the agent or use an outside service such as ours. Why use an outside service? Let’s take a look at the requirements called out in the code.
“(2) Designated agent. – The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement….by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.”
Do you want to publish your address, phone number, and email address online? Depending on the nature of your site, you may end up with “fans” or worse showing up at your door. At a minimum, your information is going to be added to marketing lists with the result being a tsunami of spam and sales calls. Use us as your agent and our information will be listed instead of yours.
Step 2 – Registering With The Copyright Office
The Copyright Office maintains an online system for agent registrations. Here’s how to get started by first opening an account:
b) To register the actual agent in your account, follow these directions:
Step 3 – Posting DMCA Agent Online
The next step in the compliance process is to publish the agent information on your website or app. The Copyright Office regulations require the name, physical address, phone number, and email address of the agent be published on your online property. However, a change to the rules in 2016 means there is also now a requirement that the business name, physical address [not PO Box or similar service] and properties covered by the agent be included in the disclosure. All of this information appears in a “DMCA Policy” published on the site and, yes, we provide our clients with a template.
One can petition the Copyright Office for the right to use a PO Box instead of the street address of the business. This is a boon if you are working from home and don’t want that information made public. The petition process takes roughly 30 days. We assist clients with the petition at no additional cost to our basic agent service.
Step 4 – DMCA Takedown Notices
Once your agent information is up, copyright owners will start to submit notices of copyright infringement to the agent. These messages are given the name “takedown notices”, and must contain particular information. Let’s return to Section 512 again to gain an understanding of the requirements.
(3) Elements of notification.
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) 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 owner of an exclusive right that is allegedly infringed.
What if you receive a notice and it doesn’t contain each bit of information? As a general rule, most online businesses are lenient. Instead of disputing whether the notice is sufficient, a business can simply go through the compliance process and avoid any risk of a lawsuit. If you fight the takedown notice, there is a chance of a lawsuit being filed and a judge disagreeing with your assessment.
Step 5 – Take The Content Down
…and here is where matters often become confusing for people running an online platform. Once you’ve received a DMCA takedown notice, your only role is to determine if the six elements described in the proceeding section are present in the notice. If so, you must automatically take down the content in question without evaluating whether or not copyright infringement exists. If you do not so act, you lose the immunity provided under the law. Importantly, do not delete the content because you may have to repost it later.
Ah, but why do sites such as YouTube and Google evaluate and reject some takedown notices. The honest answer is…economics. Larger companies are not afraid to risk the loss of immunity because each has more than sufficient monetary resources to pay any judgment that might be rendered in the future. A million dollar judgment doesn’t mean much to Google, but it probably does to you.
Step 6 – Give The User Notice
The next step of the process is to notify the user who posted the contested content that a complaint has been received. You should have an email address for all people who leave comments or post to your platform. If not, make sure it is a requirement moving forward. Send a message to the individual user who originally posted the alleged infringing content noting you’ve received a complaint. Make sure to include the complaint so the user can view the claim.
In the vast majority of cases, this will end the compliance process. Most users who post allegedly infringing content don’t realize they are breaking the law. When alerted to this fact, they almost always will not respond to your notice and the content stays down from public view, which satisfies the copyright owner.
Step 7 – DMCA Counter-Notices
Ah, but what if a user does respond? Do they have any rights under the DMCA? Yes. The user has the right to challenge the takedown notice by filing a “counter-notice.” With this counter-notice, the user states that the copyright owner has made a mistake in challenging the use of the content in question.
The counter-notice must contain the following information:
Contents of counter-notification. To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Once you receive a counter-notice, it must be forwarded to the party filing the original takedown notice. Just send it to the email address they used to contact the agent. The notice must also contain a statement that the content will be reposted on your site in 10 to 14 days unless a court order or notice of copyright infringement lawsuit is received. If you don’t receive such a document, go ahead and republish the content during the indicated period of days.
Step 8 – Repeat Infringers
The next step in the process involves repeat infringers. Repeat infringers continually post infringing content which forces copyright holders to play a game of whack-a-mole. The DMCA puts a stop to such practices by requiring online businesses to track complaints and terminate the accounts of anyone who receives multiple copyright infringement complaints that are not rebutted. How many complaints? The code does not specify, but many companies use a “twice in three years” standard.
Tracking and acting on repeat infringers is serious business. This is one of the areas where copyright owners attack online providers. In a recent case, Cox Communications was hit with a $25 million judgment when the DMCA immunity was set aside by a judge because Cox did not permanently ban repeat infringers. The judgment was reduced a bit on appeal, but one can imagine other copyright attorneys using a similar strategy.
Although the DMCA compliance process may come across as a bit confusing at first, anyone can DIY it without much fuss. Do a couple of practice runs, and you should get the hang of it quickly.