DMCA takedown notices – 2017 Updates. Twitter Sued for slow take down process (90 days)
Sample Allegations in the Complaint
Here are a few of the legal allegations made in the complaint:
“Twitter operates an Internet-based service that allows its users to send 140-character messages through Twitter's website and mobile site, client applications, or third-party applications. Twitter calls its 140-character messages “Tweets.” Tweets can contain a link to a video or image that is either hosted on Twitter's servers, or on third-party servers. Twitter has thousands of users in this District, including individuals, corporations, and government entities. Hundreds of thousands of Tweets are sent to and from this District every month. 12. Beginning on or about March 18, 2017, a Twitter user (“KJ”) copied and attached the Copyrighted Photograph to a Tweet with the text, “Happy Birthday XXXX. My world wouldn't be the same without you, as I dance to your music just about every day.” KJ copied the Copyrighted Photograph without license or permission from Pierson.”
“On information and belief, Twitter can remove each Infringing Use that is hosted on Twitter. Twitter can also disable each Tweet advertising or linking to an Infringing Use, regardless of whether the photograph is hosted on Twitter's servers or on the Twitter user's or third-party servers. Twitter has registered an agent with the United States Copyright Office for receipt of Digital Millennium Copyright Act (“DMCA”) notices. On April 18, 2017, Pierson sent a notice to Twitter's registered agent regarding the Infringing Use. Pierson's notice is titled, “DMCA TAKEDOWN NOTICE for Copyright Infringement (Alice-inChains-6).” [EXHIBIT 6]. On April 26, 2017, Twitter responded to Pierson's notice by email. Twitter's response is titled, DMCA TAKEDOWN NOTICE for Copyright Infringement (Alice-in-Chains-6) As a result of Twitter's response detailed in Paragraph 19, Pierson relied on Twitter's representation that Twitter would “disable access” to the Infringing Use. Pierson never authorized the Infringing Use. Twitter did not remove or disable the Infringing Use until July 25, 2017, Ninety (90) days later.
“Twitter had actual knowledge of the direct infringement and contributory infringement. Pierson provided notice to Twitter in compliance with the DMCA, and Twitter failed to expeditiously disable access to or remove the Copyrighted Photograph from their servers. Twitter acted willfully. Alternatively, Twitter directly infringed Pierson's copyrights by continuing to allow public access to the Copyrighted Photograph on Twitter's server or on servers controlled by Twitter, or through access controlled by Twitter to servers controlled by third parties.”
The Plaintiff seeks the full range of remedies against Twitter including statutory damages of up to $150,000 plus Attorney Fees.
DMCA take down notice procedure
Here is some various federal law on the topic of DMCA safe harbors:
“This case turns in large part on whether MP3tunes is eligible for protection under the safe harbors created by the Digital Millennium Copyright Act (“ DMCA”), 17 U.S.C. § 512. The DMCA seeks to balance the interests of copyright owners and online service providers by promoting cooperation, minimizing copyright infringement, and providing a higher degree of certainty to service providers on the question of copyright infringement. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir.2001). Toward that goal, the DMCA provides certain safe harbors (i.e., limitations on remedies for copyright infringement), but only to qualifying service providers. As courts have emphasized, “[t]his immunity … is not presumptive, but granted only to ‘innocent' service providers ” ALS Scan, 239 F.3d at 625. Moreover, the DMCA's safe harbors, as with all immunities from liability should be narrowly construed. United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993); see also Fame Publ'g Co. v. Ala. Custom Tape, Inc., 507 F.2d 667, 670 (5th Cir.1975) (statutes that provide exceptions to liability under the Copyright Act should be strictly and narrowly construed). EMI argues that MP3tunes is ineligible for protection under the DMCA because it (1) failed to reasonably implement a repeat-infringer policy by not identifying users who had sideloaded works identified in EMGNA's and EEW's takedown notices; (2) failed to act expeditiously to remove the sideloaded works identified in EMGNA's and EEW's takedown notices; (3) ignored red flags of widespread infringement; and (4) controlled and benefitted from the infringing activity.” The case also discussed:
“The key terms “reasonably implemented” and “repeat infringer” are not defined in the DMCA. Courts have held that implementation is reasonable if the service provider (1) has a system for responding to takedown notices, (2) does not interfere with the copyright owners' ability to issue notices, and (3) under “appropriate circumstances” terminates users who repeatedly or blatantly infringe copyrights. See Perfect 10 v. CCBill, 488 F.3d 1102, 1109–1110 (9th Cir.2007). The purpose of subsection 512(i) is to deny protection to websites that tolerate users who flagrantly disrespect copyrights. See Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090, 1100–01 (W.D.Wash.2004). Thus, service providers that purposefully fail to keep adequate records of the identity and activities of their users and fail to terminate users despite their persistent and flagrant infringement are not eligible for protection under the safe harbor. See CCBill, 488 F.3d at 1110; see also In re Aimster Copyright Litig., 252 F.Supp.2d 634, 659 (N.D.Ill.2002) (service provider ineligible for safe harbor where users' data was intentionally encrypted, making enforcement of non-infringement policy impossible). On the other hand, service providers have no affirmative duty to police their users. See CCBill, 488 F.3d at 1111. In cases of video and file sharing sites, courts have found reasonable implementation where service providers terminated the accounts of users who had been warned yet continued to upload material that had been the subject of a takedown notice. See, e.g., UMG Recordings, Inc. v. Veoh Networks Inc., 665 F.Supp.2d 1099, 1117–18 (C.D.Cal.2009).
(c) Information Residing on Systems or Networks At Direction of Users.— (1) In general.—A service provider shall not be liable … 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 … 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 Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 636 (S.D.N.Y. 2011), on reconsideration in part, No. 07 CIV. 9931 WHP, 2013 WL 1987225 (S.D.N.Y. May 14, 2013)
Contact a DMCA copyright law firm
If you need help with a software dispute, DMCA take down notice (sending one, or responding to one), or other legal issue under the DMCA or United States Copyright Law, call us at (877) 276-5084.