DMCA take down notices explained by Attorney Steve®
If you have been hanging around the internet long enough you may have heard the term “DMCA takedown.” But what does this copyright term mean? I will try to make it real easy with an example.
Youtube is one of the most popular sites on the internet. Millions of people post their videos on this platform. Obviously, Youtube cannot monitor each video uploaded and check whether or not the video might infringe another company's copyright. Because of this, Youtube needs to designate a “DMCA agent” to review any claims of infringement. If they do this, and properly process the disputes, they get “safe harbors” meaning they cannot be sued for federal copyright infringement. This is important when you consider there are probably hundreds if not thousands of videos uploaded each month that contain copyrighted digital content belonging to a third party (ex. music, photo, image, video clip, etc.). As such, the DMCA is needed to help Youtube (and other sites that allow users to upload “user generated content”) avoid what could otherwise amount to massive secondary copyright infringement liability. The DMCA sets out a few requirements however.
As one court in the California Central District noted:
“Congress enacted the DMCA “to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.” S. Rep. 105–190, at 1–2 (1998); see also Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 494 F.3d 788, 794 n. 2 (9th Cir.2007). The statute is meant to “appropriately balance[ ] the interests of content owners, on-line and other service providers, and information users in a way that will foster the continued development of electronic commerce and the growth of the Internet.” H.R. Rep. 105–551(II), at 21. Congress explained the need to limit service providers' liability by noting that “[i]n the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability…. [B]y limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.” See UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1090 (C.D. Cal. 2008).
Microsoft Takedown vs. Ninjutsu OS
Another recent example in 2020 is a DMCA takedown sent by the Business Software Alliance ("BSA") a non-profit trade association that has Microsoft as one of its members (also has Abobe and Autodesk). The BSA sent a DMCA takedown to Ninjutsu OS for allegedly violating it's copyright as noted below:
Apparently, they do not appreciate any tinkering with its Windows 10 operating system software. Ninjutsu's claims that users could remove specific applications, uninstall some components of Windows (uninstall bundled software) and remove and disable programs did not sit well with Microsoft and BSA, their representative, sent a takedown to host Github. This is an example of what can happen in the software world of DMCA.
Legal requirements to file a DMCA take down notice
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If you file a notice with our Copyright Agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). The DMCA requires that copyright owners provide the following information in a takedown notice:
(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.
See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1153 (N.D. Cal. 2008).
If a copyright holder sends the take down notice to youtube, the person who posted the ALLEGEDLY INFRINGING material will be notified. They will have a chance to file a counter-notification disputing the wrongful conduct. If they win, the content goes back up. One way they might win is a “fair use defense” (see below)
Attorney Steve Tip: note that the DMCA takedown process is difference from the Youtube Content ID (which automatically checks your videos for infringement content when you upload it).
DMCA “bad faith” take down notices - 512(f) claims!
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It is important to note that DMCA notices should not be sent in bad faith without first doing a honest objective review. If you file a fraudulent or bad faith takedown notice you could face your own legal problems. As one cause noted, a copyright holder must consider the fair use defense before filing a take down notice, and failure to do so could subject the alleged copyright enforcer to legal action:
“in order for a copyright owner to proceed under the DMCA with “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,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general.”
See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1154–55 (N.D. Cal. 2008).
Uploading digital content may be entitled to a “fair use” defense
If you receive a take down notice, a common defense against infringement can be the “fair use” doctrine. This is one reason I recommend that videographers and moviemakers that upload to websites like Vimeo use a “disclaimer” to put other parties on notice that the content being used is believed to be in good faith a fair use of the other person or company's copyrights. Click below to learn more about the disclaimer.
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Contact a copyright arbitration & litigation law firm
If you need help with a copyright legal issue, such as sending or responding to a DMCA takedown notice or counter-notification, software audits with BSA, or other copyright infringement issues contact us at (877) 276-5084 to discuss.
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