Digital Millenium Copyright Act

Posted on 8/4/1999 by Jim Pickerell | Printable Version | Comments (0)



August 4, 1999

by: Nancy E. Wolff

    Ms. Wolff is Counsel for the Picture Agency Council of America

    and the article was first published in the PACA newsletter.

The Digital Millennium Copyright Act (DMCA) is proving to be a powerful tool

to curb Internet copyright infringement. Internet service providers lobbied

hard for a limitation of liability from copyright infringement actions, arguing

that it was impossible to monitor the web. A compromise was struck, giving

ISP's a safe harbor from certain liability if they followed certain procedures

and guidelines. The result is Title II, Section 512 of the DMCA. By following

specified "notice and take down procedures" ISP's can limit their liability for

certain activity by removing any alleging infringing material.

The DMCA is complicated and I have had several questions regarding its use

to prevent the unauthorized use of photographs lately. I have broken down

relevant portions of the Act into a series of questions.

Q. Who is a "service provider" under the law?

A. Anyone who

    (1) provides online service;

    (2) provides network access;

    (3) operates a facility that provides network access; or

    (4) transmits, routes or provides connections for digital online

    communications between or among specified users, of unmodified materials of the

    users choosing. This definition is fairly broad and includes any site that

    offers a "chat" room.

Q. How is a Service Provider eligible for protection?

A. A provider must not have knowledge of the infringing activity. If provider

has right and ability to control the infringing activity, it must not receive

financial benefit directly attributable to the infringing activity. Upon

receiving proper notification of claimed infringement, the provider must

expeditiously take down or block access to the material.

File with the Copyright Office a designation of an agent to receive

notification of claimed infringement. The Copyright Office provides a suggested

form and maintains a lists of designated agents on the Copyright Office website

Post a copy of the notice of designated agent on its website.

Q. What constitutes proper notification of infringement to a service provider?

A. Written communication to the designated agent.

Includes a physical or electronic signature of a person authorized to act on

behalf of the owner of the exclusive right that is allegedly infringed.

Identify the copyrighted work that is claimed to be infringed, or a

representative list if multiple copyrighted works on a single online site are

covered by the notification.

Identification of the material that is claimed to be infringing or the subject

of the infringing activity that is to be removed or access is to be disabled.

The information must be clear enough to permit the service provider to locate

the material.

Information to permit the service provider to locate the complaining party

(address, telephone number, e-mail address).

Statement by complaining party that it has a good faith belief that the use of

the material is not authorized by the copyright owner, its agent, or the law.

Statement that the information provided in the notification is accurate, and

under penalty of perjury, that the complaining party is authorized to act on

behalf of the owner of the exclusive right that is allegedly infringed.

Q. What must the Service Provider do to limits its liability?

A. The Service Provider will not be liable for taking down the allegedly

infringing material if it:

    Takes reasonable steps to notify the subscriber that it has removed or

    disabled access to the material.

    Upon receipt of counter notification, promptly provide the person who provided

    the notification with a copy of the counter notification and inform the person

    that it will replace the removed material or cease disabling the material in ten

    (10) days.

    Replaces the removed material and ceases disabling access to the material not

    less than ten (10), no more than (14) business days following receipt of the of

    the counter notice unless its designated agent receives notice from the first

    person who sent a notice of infringement that such person has filed a court

    order to restrain the subscriber from engaging in infringing activity relating

    to the material on the service providers system.

Q. What must the counter notice contain?

A. A physical or electronic signature of the subscriber.

Identification of the material that has been moved, or access denied and the

location of where the information appeared before it was removed or disabled.

A statement under the penalty of perjury that the subscriber has a good faith

belief that the material was removed or disabled as a result of a mistake or a

misidentification of the material to be removed.

The subscriber's name, address and telephone number and a statement that the

subscriber consents to jurisdiction of the Federal District Court for the

judicial district in which the address is located, or if the subscriber is

outside 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 or its agent who provided the initial notification.

Q. Can you obtain the identification of the infringer?

A. Yes, a copyright owner can request the clerk of any US district court to

issue a subpoena to a service provider for an identification of an alleged


Q. What must a Service Provider do to become eligible?

A. Adopt and implement a policy of that provides for termination of subscribers

that are repeat infringers.

    Inform its subscribers of its policy.

    Accommodate and not interfere with standard technical measures.

Q. Can you collect money damages against a service provider if they have fully

complied with the requirements?

A. No, the service provider is protected from monetary relief for posting

infringing material which includes damages, costs, attorneys fees and any other

form of monetary payment.

Q. How can this help prevent the infringement of material from a stock library?

A. If a web site contains unlicensed photographs that you believe in good faith

are yours, or are an infringing copy, you can notify the hosting service

provider of the alleged infringement, identifying that you are the authorized

agent of the copyright owner and identify the copyrighted work.

If the notice complies with the requirements, the service provider must remove

the offending material. Unless the service provider receives a counter

notification, this notice will probably insure the removal of the material

without further activity. However if a counter notification is filed, you must

commence a legal proceeding or the material will be reinstated. If you do not

have a copyright registration for the material, you will have to seek expedited

registration from the Copyright Office which costs $500 plus the $30 application

fee in addition to any court costs. Although the DMCA is very recent, it seems

unlikely that an unauthorized user will send a counter notification submitting

to federal jurisdiction.

One organization that has effectively been using the DMCA to shut down critics

is the Church of Scientology. The online community of Scientology critics has

long copied, distributed and annotated hundreds of "top secret" and copyrighted

documents from the Church of Scientology invoking fair use laws, (which allow

publishers to excerpt copyrighted material for the purpose of comment or

criticism), to defend their actions. The Church of Scientology has aggressively

sought to shut down web sites that have republished its material all across the

Internet and is now using the DMCA to demand that Internet service providers

disable their Web sites or reveal their identities as anonymous Usenet posters

because of alleged copyright infringements.

The ease in which the DMCA can be invoked is that you allege that an

infringement has occurred (under penalty of perjury), but you do not have to

first prove an infringement in a court of law. The ISP, wishing to preserve its

safe harbor and limit its liability, has no choice but to remove or block the

material. Unless the contributor agrees to file a counter notification and

subject themselves to a court action, the material will in most cases remain


Putting aside issues of fair use and one's first amendment right of fair

comment, the DMCA can prove to be a valuable tool if the goal is to remove the

offending material quickly and not seek monetary damages.

    Ms Wolff can be contacted at The Law Offices of Nancy E. Wolff,

    147 W. 80th Street, New York, NY 10024, Telephone: 212-787-1640, Email:

    She is also Of Counsel to The Weinberg Legal Group, a new media, intellectual property

    firm in Phoenix, Arizonia.

Copyright © 1999 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


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