Musings on DMCA Takedown Provisions

Ernie the Attorney started the recent brouhaha over the notice and takedown provisions in the DMCA. You can read Ernie’s take here, with Denise Howell’s original take here. There are some really interesting comments in the discussion to Ernie’s post.

So what do these provisions do?

If you know that someone is using your copyrighted materials online in an unauthorized fashion, you can send a notice to the ISP of the infringer. The notice must contain:

(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.



So who do you send the notice to? The ISP, in order to take advantage of the “safe harbor” provisions in the DMCA for its conduct, must register with the copyright office. A listing of contact persons (“Agents for Notification”) can be found here.

Once the ISP receives the notice, assuming it is proper, it must expeditiously remove or disable access to the allegedly infringing material and notify the alleged infringer of the action.

The alleged infringer can send its ISP a counter-notification. The counter-notification must contain:

(A) A physical or electronic signature of the alleged infringer.
(B) Identification of the material that has been removed or to which access has been disabled and the location before removal.
(C) A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) Their name, address, and telephone number, and a statement that they consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that they will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

If the ISP receives a valid counter-notification, it must send the sender of the original notice a copy of the counter-notification and inform that person that the material will be returned or access restored in ten business days. It must put the material back in no less than ten and no more than fourteen days from receipt of the counter-notification. This gives the sender of the original notice time to take other action, such as file suit in federal court.

Personally, I understand Ernie’s position that the DMCA’s provisions could be used by an unscrupulous copyright holder to stifle free speech, i.e. sending a notice when it’s obviously fair use that’s occurring. On the other hand, *something* has to be done against people who scrape sites for content and rebrand it as their own work. That’s just theft, and should be stopped. And punished.

One Response to Musings on DMCA Takedown Provisions

  1. Section 512(f) should do a pretty good job of stopping the unscrupulous, as it would put him or her on the hook big time for knowingly making any material misrepresentation about the copyright status. See, e.g., the OPG v. Diebold case.

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