The Digital Millennium Copyright Act is a federal copyright law in the United States. The “DMCA” is a critical tool for any online business that allows users to upload content because the law provides you with immunity from copyright claims based on such content. Put another way, Instagram is not responsible for images uploaded by users to their pages. This concept is known as the DMCA safe harbor. Yet, this immunity comes with a price – a compliance procedure you must follow.
DMCA Compliance Process
The DMCA compliance process serves a specific purpose. It allows parties involved in a copyright dispute to work informally to resolve the dispute. Let’s take a closer look at the steps.
Step 1 – The DMCA Agent
Section 512 of the DMCA “code” requires businesses to select an agent to be the contact point for claims. 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. If nothing else, your information is going to end up on marketing lists. Imagine the tsunami of spam and sales calls. When we act as your agent, you don’t have to worry about your privacy or endless marketing approaches.
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:
- a) Here is the domain where you can open the account.
- b) To register the actual agent in your account, follow these directions:
- c) The Copyright Office will send you a confirmation email within an hour once you are approved.
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 has precise rules about what is and is not required. For the agent, the information must include:
- a) The name of the agent,
- b) The mailing address,
- c) The agent’s phone number, and
- d) The agent’s email address.
You must publish this information on your site or app. We recommend a stand-alone DMCA Policy, which we provide to our clients.
As noted in late-night infomercials, but that’s not all.
A company must also list specific information about itself in the DMCA Policy including:
- a) The legal name of the business,
- b) The physical street address of the business where work is undertaken, and
- c) The sites and apps the agent represents for the company.
The physical address rule is a problem. The Copyright Office has provided guidance stating a post office box or similar service is not allowed. Well, what if you work from home and have a family? The last thing you want is a “fan” or some other weirdo showing up at your doorstep.
After receiving endless criticism, the good news is the Copyright Office has created a workaround. One can petition the legal department at the Copyright Office for the right to use a PO Box instead of the street address of the business. A safety concern must be the basis of the petition. From submission to approval or rejection takes roughly 30 days. We assist clients with the petition at no extra cost to our basic agent service.
Step 4 – DMCA Takedown Notices
Copyright owners will start to submit complaints once you publish the agent information. We call these complaints “takedown notices,” and must contain specific bits of 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? Most online businesses are flexible and accept the filing if it generally complies. One receives immunity by following the compliance procedure, so why fight it? If you fight the takedown notice, a judge could disagree with your position in a later lawsuit and rule you’ve waived the DMCA immunity. Obviously, that would make for a dreadful day.
Step 5 – Take The Content Down
…and here is where the compliance process often becomes confusing. Your only task upon receipt of a takedown notice is to determine if the six elements described above are present. If so, you must automatically take down the content in question. You do not determine whether copyright infringement exists. You do not determine if there is a defense to the claim. The only step you take with the contested content is to take it down. If you do not so act, you lose the immunity provided under the law. Do not delete the content! You may have to repost it later as described below.
Ah, but why do sites such as YouTube and Google reject some takedown notices? The honest answer is…economics. Larger companies are not afraid to risk the loss of immunity provided under the DMCA. The Googles of the world have more than enough money to pay a judgment in a copyright lawsuit, and the truth is many DMCA takedown notices have no merit. A million dollar judgment doesn’t mean much to Google, but it should to you.
Step 6 – Give The User Notice
The next step of the process is to notify the user who first posted the contested content of the complaint. You should have an email address for all people who leave comments or post to your platform. If not, make sure to get the information moving forward. Let the user who posted the alleged infringing content now about the complaint. Make sure to include the complaint in the message 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 will almost always panic and either apologize or not respond at all. As a result, the contested content remains down, which makes the copyright owner happy.
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.” In the notice, the user states that the copyright owner has made a mistake in submitting a complaint.
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, you must forward it to the copyright owner. Send it to the email address they used to contact the agent. The notice must contain a statement indicating you will repost the content on your site or app in 10 to 14 days. Do this unless you receive a court order or lawsuit from the copyright owner.
Step 8 – Repeat Infringers
Repeat infringers are people who post infringing content on more than one occasion. This conduct forces copyright owners to play whack-a-mole to protect their content. The DMCA puts a stop to such practices. Online businesses must track complaints. Anyone receiving more than a pre-set number of takedown notices must be terminated. 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. Copyright attorneys successfully attack online providers for failing to enforce this rule. A court recently found Cox Communications guilty of failing to ban repeat infringers. The judgment? 25 million dollars. As you might guess, thousands of copyright attorneys took notice. We can expect to see more attacks in this area.
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.