Digital Millennium Copyright Act (“DMCA”) Resource Center – Frequently Asked Questions. Another amazing Attorney Steve® legal resource!!!
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What is the DMCA?
Recognizing the need “to update domestic copyright law for the digital age,” Congress enacted the DMCA. Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19, 26 (2d Cir. 2012). Section 512 of the DMCA contains a safe harbor provision protecting online and internet service providers (“ISPs”) from monetary liability, only allowing for limited injunctive relief, when copyright infringement occurs through use of the service. 17 U.S.C. § 512(c). The safe harbor provision is designed to “preserve strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements,” while simultaneously providing “greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.” H.R. Rep. No. 105-551, pt. 2, at 49-50 (1998). To benefit from safe harbor protection, the ISP must first show that the infringing content was stored “at the direction of a user.” 17 U.S.C. § 512(c)(1). Once this is established, there are numerous factors which must be satisfied to come within the protection of the safe harbor.
Specific to this case, an ISP will not qualify for safe harbor protection if it had either actual knowledge of the infringement or knowledge of facts or circumstances from which infringing activity is apparent. Id.
§ 512(c)(1)(A)(i)-(ii). Additionally, if the ISP became aware of the infringement and did not act expeditiously to remove or disable access to the content, it cannot qualify for safe harbor protection. Id. § 512(c)(1)(A)(iii).
Specific to this case, an ISP will not qualify for safe harbor protection if it had either actual knowledge of the infringement or knowledge of facts or circumstances from which infringing activity is apparent. § 512(c)(1)(A)(i)-(ii). Additionally, if the ISP became aware of the infringement and did not act expeditiously to remove or disable access to the content, it cannot qualify for safe harbor protection. Id. § 512(c)(1)(A)(iii).
See BWP MEDIA USA, INC., d/b/a Pacific Coast News; NATIONAL PHOTO GROUP, LLC, Plaintiffs – Appellants, v. No. 15-1154 CLARITY DIGITAL GROUP, LLC, n/k/a AXS DIGITAL MEDIAL GROUP, LLC, Defendant – Appellee
Watch Short Powerpoint for a quick DMCA overview
What is a “user” of an online service provider?
As previously stated, a “user” is anyone who uses a website — no class of individuals is inherently excluded. Meaning, according to one case, even an agent or independent contractor (ex. someone who writes news articles for a website) can be deemed a user of the site.
We are often tasked with interpreting complex statutory language but, when “the statutory language is clear, our analysis ends and we must apply its plain meaning.” Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1161 (10th Cir. 2011). We need not torture “the language of the statute when a simple, straightforward reading obviates the necessity of making such semantic contortions.” Equal Emp't Opportunity Comm'n v. Louisville N. R.R. Co., 505 F.2d 610, 619-20 (5th Cir. 1974); see also Resolution Tr. Corp. v. Fed. Sav. and Loan Ins. Corp., 25 F.3d 1493, 1500 (10th Cir. 1994). The word “user” in the DMCA is straightforward and unambiguous. Simply put, a “user” is “one that uses.”
Merriam-Webster's Collegiate Dictionary 1297 (10th ed. 2001). In the DMCA context, we agree with the district court that the term “‘user' describes a person or entity who avails itself of the service provider's system or network to store material.” BWP Media USA Inc., 2015 WL 1538366 at *6. We note that opinions interpreting the DMCA's safe harbor provisions have not exhaustively defined the term, suggesting apparent clarity. See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1015-20 (9th Cir. 2013); Viacom Int'l, Inc., 676 F.3d at 38-40; Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1117-18 (9th Cir. 2007).
Note: (make sure to check if there is any case law, which I believe there might be, that excuses employees, agents or owners from being users). Meaning if these people are posting content, a safe harbor may not apply. For example, See UMG Recording, Inc. v. Escape Media Grp., Inc., No. 11-civ-8407, 2014 WL 5089743 (S.D.N.Y. Sept. 29, 2014) (safe harbor provision never discussed or raised as an affirmative defense); Capitol Records, Inc. v. MP3tunes, LLC, 48 F. Supp. 3d 703, 714-18 (S.D.N.Y. 2014) (holding that when executives have actual knowledge of the specific instances of infringement they lose the safe harbor protection); Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 500, 518 (S.D.N.Y. 2013) (holding that the determinative consideration was whether the infringing postings were made by employees at the direction of their employer, not whether it was an employee who had posted the infringing material).
DMCA legal essentials
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When is infringement “at the direction of” another?
The infringing material was not stored at the direction of AXS.
The key to limiting the safe harbor provision and preventing the creation of the “lawless no-man's-land,” Aplt. Br. at 17, is to look to the language constraining the word “user.” The relevant question isn't who is the “user,” but rather, who directed the storage of the infringing content? See 17 U.S.C. § 512(c)(1). Key to this provision is control. There is no protection under § 512 when the infringing material is on the system or network as a result of the ISP's “own acts or decisions.” H.R. Rep. No. 105-551, pt.2, at 53 (1998). When an ISP “actively encourag[es] infringement, by urging [its] users to both upload and download particular copyrighted works,” it will not reap the benefits of § 512's safe harbor. Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1043 (9th Cir. 2013). However, if the infringing content has merely gone through a screening or automated process, the ISP will generally benefit from the safe harbor's protection. See, e.g., Shelter Capital Partners LLC, 718 F.3d at 1020; IO Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1146-48 (N.D. Cal. 2008); CoStar Grp., Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688, 701-02 (D. Md. 2001), aff'd, 373 F.3d 544 (4th Cir. 2004).
The main section that is invoked is 17 U.S.C. 512(c)
There are actually four different types of safe harbors under the DMCA. However, the main one that gets invoked dealing with posting of infringing photos, videos, music and other copyrighted content is section 512(c) which deals with content that is posted by users of a website (for example, social media websites like twitter, facebook, youtune, and other website sites). There are certain requirements for online websites to be able to seek safe harbor protection under this section.
(c) Information residing on systems or networks at direction of users.
(1) In general.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
See 17 U.S.C. § 512(c).
17 USC 512(f) – How to stop a DMCA bully in their tracks with a bad faith misrepresentation claim!
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What is “Red Flag” knowledge of infringement (which would preclude DMCA safe harbor liability protection)?
Another factor that can impinge on an attempt of an online service provider to be able to seek safe harbor protection is if they have what's known as “red Flag” knowledge of infringement. One case that discussed this issue is:
Shelter Capital Partners LLC, 718 F.3d at 1022-23 (“For the same reasons, we hold that [an ISP's] general knowledge that it hosted copyrightable material and that its services could be used for infringement is insufficient to constitute a red flag.”).
What is a 17 U.S.C. 512(f) misrepresentation claim?
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Does DMCA cover trademark or right of publicity?
No. The DMCA was passed to address online copyright infringement. Not trademark or California right of publicity. For these, sending a cease and desist letter may be the best route. Filing a DMCA takedown for one of these might end up with a bad faith DMCA filing. For example, in CrossFit, Inc. v. Alvies, (N.D. Cal. Jan. 22, 2014) the Northern District Court of California held that CrossFit's use of a DMCA takedown notice to try to resolve an alleged trademark matter may violate § 512(f) and the Court refused to dismiss a counterclaim for bad faith DMCA, explaining that the party “plausibly alleged” a material misrepresentation (i.e. that the DMCA applied to the situation).
What is the “Safe harbors” provision?
Safe harbor protection is conditioned on various factors: An ISP will only qualify for safe harbor protection when it can show, inter alia, that:
- the content was stored at the direction of a “user,”
- that the ISP had no actual knowledge of the infringement,
- that there were no surrounding facts or circumstances making the infringement apparent,
- or that upon learning of the infringement, the ISP acted expeditiously to remove or disable access to the infringing material. See 17 U.S.C. § 512(c)(1)(A).
What is the Notice and Take Down process?
Basically, the party (ex. copyright holder) that believes there is an online infringement of their copyrighted work (ex. someone is posting your video on yourtube or vimeo without license or authorization) the party needs to send a notice to the online service provider to make a formal complaint.
- The letter should go to the Registered DMCA agent for the online provider
- The aggrieved party must make sure the notice has all the required elements (see below)
- The service provider should take down the infringing content if it believes the infringement claim is legitimate
- The party accused of infringement should be given a right to file a counter-notification (see below)
- If not counter protest is received, the content is permanently removed
- If contested, the online service provider will make a final determination as to whether or not there is infringement, (or perhaps not, perhaps there is a “fair use” or a “license” or a “parody” or some other valid explanation).
- If there is a valid reason the content may be reposted
What are the requirements of a valid DMCA notice?
The requirements of a valid letter are set forth in 17 USC §512(c)(3):
(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.
NOTE: Missing any of these requirements could result in the take down notice not being taken serious and may invalidate a subsequent copyright infringement claim.
What types of companies can be protected by the “safe harbors?”
In general, I would say any company that hosts User Generated Content.
How can I find the DMCA registered agent for a company so I know where the send the take down letter?
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What types of digital content can be subject to a copyright infringement DMCA notice?
Anything that can be copyrighted can be subject to a DMCA takedown notice including but not limited to:
- Movies (ex. using a copyrighted song in a youtube video without permission)
- Videos (ex. taking a porno movie from a membership site, downloading and sharing it on a free TUBE site)
- Online education courses
- NFT (non-fungible tokens)
- Podcast (posting your podcast on their social media website without your permission)
- Software (ex. a licensed or bootlegged copy of software posted for sale on eBay)
- Article off your blog (ex. cut and pasting your article onto their blog)
- Copyrighted literary material
What happens if someone files a DMCA takedown notice in bad faith or misrepresents key facts?
There is a provision in the law that allows someone who is targeted with a BAD FAITH DMCA takedown notice to file a lawsuit seeking damages and attorney fees.
How does a company register a DMCA agent?
Registration is done electronically on the United States Copyright Office website. We did a video on this.
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Should you hire a lawyer to be your DMCA registered agent for infringement notices?
We wrote an article about this. Here is a video that may help explain it.
How does the “fair use” defense play into all this?
Fair use is a defense to infringement. Meaning, if you can show that you are using another person's copyrighted film, video, software, etc. for a “fair use” (ex. comment or criticism) then there is no infringement. Under these circumstances, the copyright holder should refrain from sending out an infringement letter. In fact, we wrote a blog on how a copyright holder should consider FAIR USE before sending out a takedown notice.
Another important fact to keep in mind, in many DMCA takedowns that you file, the takedown form, or the requirements of the platform (ex. Twitter, Facebook, Instagram, Etsy, etc.), may ask you something like this as part of the complaint process:
What is a DMCA subpoena?
Here is some information on a DMCA “unmasking” subpoena. A DMCA subpoena can help you UNMASK a potential infringer that may be hiding under a screen name an this allows you to seek their information with a court-issued subpoena (no lawsuit is required to be filed).
What is the DMCA claim about altering or removing copyright management information?
Click here to read our blog about Section 1202 copyright claims.
What are the damages for copyright infringement?
Here is a video we made which discusses the various copyright infringement damages that copyright might seek in an infringement case.
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Contact a DMCA copyright infringement law firm
If you need some help with a copyright legal issue, mediation, arbitration, litigation, software audit defense, Strike 3 Holdings Bittorrent litigation defense, or other infringement matter, contact us at (877) 276-5084 or fill out the contact form below.
We will also be handling infringement claims in the new Copyright Small Claims Court in Washington D.C. (set to take cases in December 2021).