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DIGITAL MILLENNIUM COPYRIGHT ACT
August 4, 1999
by: Nancy E. Wolff
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
http://www.loc.gov/copyright/onlinesp/list/).
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
infringer.
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.
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
blocked.
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: newolff@aol.com.
She is also Of Counsel to The Weinberg Legal Group, a new media, intellectual property
firm in Phoenix, Arizonia.