The DMCA repeat infringer policy is an often-ignored part of the DMCA compliance process. Many website and app owners are under the impression posting a copyright policy in the terms on their site and designating an agent is sufficient to comply with the DMCA. This belief is mistaken. Compliance with the 
DMCA requires many additional steps.
Uno, Dos, Tres
Many users of your site or app will accidentally infringe on the copyright of third parties. A user may upload a cartoon or another funny image without realizing taking such a step violates copyright law. The receipt of a takedown notice cures the member of their ignorance, and no further issues arise.
Ah, but what if the user continues to post content that infringes on the copyright of others? Such a user is known as a “repeat infringer.” The DMCA contains compliance requirements focused on dealing with these individuals. This is one area that has not changed with the new Copyright Office rules.
Repeat Infringer Policy
The DMCA requires online operators affirmatively deal with repeat infringers. Initially, a website or app must maintain a written repeat infringer policy. This is different from your general DMCA Policy. In this policy, the company must establish how often a user can be successfully accused of copyright infringement before the account for the user is terminated. The going standard is currently twice in three years.
Establishing a policy is not enough. You must enforce it. Upon receiving a DMCA takedown notice, the complaint and outcome should be recorded in a master spreadsheet. The stats should be kept up to date. If a user accumulates a sufficient number of complaints to trigger the repeat infringer policy, their account should be closed and the IP address blocked.
Consequences
There are serious consequences for failing to establish and enforce a repeat infringer policy. The primary consequence is the site or app loses the DMCA safe harbor protection provided by the law. This loss allows third parties to name you and your company as a defendant in any copyright infringement lawsuit under a theory of contributory infringement. Copyright infringement damage awards are often in the seven figures. Welcome to hell, a place where you will find Grooveshark.
Real Life Example
Grooveshark was a music streaming site. Note the use of the word “was.” Members could upload and share tunes. Obviously, publishers copyright music, which rendered Grooveshark a hotbed for copyright infringement and DMCA takedown notices.
For some bizarre reason, Grooveshark decided to ignore the requirements of the DMCA and create its own copyright complaint processing framework. The decision proved to be costly.
Capitol Records sued Grooveshark for contributory copyright infringement based on the widespread copyright infringement occurring on the service. Grooveshark claimed DMCA safe harbor immunity. Capitol Records argued the safe harbor was waived because Grooveshark failed to terminate repeat infringers. The court agreed with Capital Records and terminated the safe harbor immunity protection. Grooveshark settled the case for $25 million and agreed to close down the service.
Grooveshark played fast and loose with the DMCA and copyright law. Don’t make the same mistake. Get your ducks in order when it comes to DMCA compliance. Anything less and you risk the future of your business.
* Update – Cox Communication hit with $25 million judgment over failed repeat infringer policy.
In Closing
DMCA compliance provides tremendous benefits to companies operating online. Of course, these benefits only exist if companies meet the compliance obligations called out in the DMCA. The repeat infringer provision is commonly a problematic area. Make sure your company is fully compliant in this area. Post a DMCA policy in your terms, and make sure to note you have and follow a repeat infringer policy. Don’t hesitate to contact us if you need a DMCA agent, as well.
Rick Chapo