The basics of the Digital Millennium Copyright Act

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The Digital Millennium Copyright Act (DMCA) is a federal law that addresses a range of copyright issues. Perhaps most importantly for bloggers and other publishers, its “safe harbor” provisions can minimize liability for unlawfully posting the copyrighted works of others.

In order to be shielded from liability under the “safe harbor” provisions, Internet service providers must follow very specific “notice-and-takedown” procedures once notified of potentially infringing material. To qualify for safe harbor protection:

• An ISP must be unaware that infringing material or activity on their system infringes a copyright. And, once informed that material infringes a copyright, the ISP must “act[] expeditiously to remove, or disable access to” such content.

• Where ISPs have the ability and right to control an infringing activity, they must not receive any “financial benefit directly attributable to” it. They must also implement a policy for terminating the accounts of repeat infringers, and inform their users of this policy.

• ISPs must also establish “notice-and-takedown” procedures for the removal of allegedly infringing content. They must register with the U.S. Copyright Office and provide it with contact information of an agent designated to receive notifications of alleged infringement. That information must also be posted on their website.

Under the law, an infringed copyright holder must give proper notice of alleged infringement in writing and identify both the work(s) allegedly infringed and the material that is allegedly infringing it, with enough information to permit the ISP to locate that material for removal. Notices must also provide the alleged copyright holder’s contact information and signature, and a statement that they have the good faith belief that the use is infringing. Finally, the notice must state that the notification is accurate, and state under the penalty of perjury that the complainant is a person authorized to act on behalf of the owner of the allegedly infringed copyright.

When an ISP receives a proper notice of infringement, it must “expeditiously . . . remove, or disable access to” the allegedly infringing material or activity in order to receive safe harbor protection.

The DMCA also contains safeguards against fraudulent notices or otherwise improper removal of work.

In order to avoid liability for wrongful removal of non-infringing content, ISPs must implement counter-notification procedures. First, they must take reasonable steps to promptly notify a user whose content was removed after the ISP received a notice. Once notified, the allegedly infringing user may submit a written counter-notice to the ISP identifying the removed material, a statement that they believe in good faith that the content was mistakenly removed (perhaps because the work is not subject to copyright protection or a fair use defense applies), their contact information and signature, and a statement consenting to jurisdiction in the appropriate courts.

The ISP must then provide the alleged copyright holder with both a copy of this counter-notification and a notice that the removed material will be replaced in ten business days. It must then remove the content between 10-14 business days following receipt of the counter notice unless the alleged copyright holder notifies the ISP that he/she has filed a court order against the allegedly infringing subscriber.

The law also provides for penalties in the form of money damages — available to copyright holders, alleged infringers, and ISPs — for those who submit notices or counter-notices containing knowing, material misrepresentations about the infringing nature of the material.