DMCA: Notice and Take Down
Where a copyright holder identifies possibly infringing content, the copyright holder can give notice to the service provider. For the notice to be valid, the apparent copyright holder must [17 U.S.C. § 512(c)(3)]
- send a written notice to the ISP’s designated agent,
- identify the copyrighted work claimed to have been infringed,
- identify the infringing material with specificity (i.e., the exact URL - vague statements that a network has infringing copies of content somewhere on their system are insufficient),
- provide sufficient information so that the service provider can contact the copyright owner (address, phone number, and e-mail address),
- include a statement that the complaining party has a good faith belief the poster is using the material without authorization from the owner or the law, and
- sign the notice with a statement that the notice is accurate under penalty of perjury.
The majority of notices appear to be filed by a few enforcement rights companies. Reports indicate that copyright owners and their agents have automated the process of identifying unauthorized copies of their works, and send out computer generated notices that have not been reviewed by any human or attorney. [Katyal p 345] [EFF] [Brennan p 14] Compare [Bainwol]
Defective Notice: Some courts have indicated that without proper compliance with the DMCA, the notice is ineffective. Hendrickson v. eBay Inc., Case No. CV 01-0495 RJK (CD Cal. 2001): copyright owner's notice to Ebay was deficient where it failed to have a proper signature, failed to provide specific page where violation occurred, and failed to include good faith statement and statement that notice is accurate under penalty of perjury. The access provider is not required to sort through all content based on non-specific allegations.
Other courts have held that substantial compliance with the notice requirement effectively puts the service provider on notice of the infringing activity; thus the service provider even with defective but substantially complying notice must act against the infringing content. ALS Scan Inc. v. Remarq Communities Inc., 239 F.3d 619 (4th Cir. 2001): Plaintiff's defective notice made defendant aware that third party's use of system was infringing, thereby eliminating service providers immunity unless it acted.
Having properly received a valid notice, the provider must expeditiously [RIAA v. Verizon] take down (remove or disable access to) the content in question, and promptly provides notice to the poster of the content.
The content poster can respond with a counter notice stating that the content in question is not infringing (aka "Put Back Requirements"). [17 U.S.C. § 512(g)] The content poster must
- send a written notice sent to the ISP’s designated agent,
- identify the material that has been removed,
- provide the contact information of the poster (name, address, phone number),
- include a good faith statement that the “material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled,”
- sign the notice with a statement that the counter notice is accurate under penalty of perjury, and
- include a statement that the poster consents "to the jurisdiction of the Federal District Court for the judicial district in which” the poster is located.
The ISP receives a proper and valid counter-notice and must
- provide notice to the individual serving the original notice above that the material will be restored in 10 business days; and
- restore the content between (not earlier or later than) 10 and 14 business days from the date of the receipt of the counter notice, unless the ISP first receives notice from the copyright holder that the holder has sued the poster.
If someone sends a notice to the provider, knowing that the notice is a material misrepresentation, resulting in the wrongful removed of content (or if the poster sends a wrongful counter notice), the injured party has certain rights (recovery from the ISP is not one of them).
- Diebold (NDCA 2004)
- Compare Tuteur v. CROSLEY-CORCORAN, Dist. Court, D. Massachusetts 2013 (dismissing for failure to state a claim plaintiff's complaint that defendant made a material misrepresentation of infringing activity stating "there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission"
The wrongful actor may be liable to the injured party (including the provider) for resulting damage including costs and attorney’s fees. [17 U.S.C. § 512(f)] Note that individuals seeking damages under this section will have two challenges:
- establishing that the illicit notice was provided with knowledge that it was errant [Arista] [Rossi] and
- establishing damage (if the local youth soccer club's website is taken down for a week due to an errant notice, what is the quantifiable damage).
The overuse of takedown notices has received significant criticism.[DMCA Problems] [EFF] [Urban] [Brennan] [Chilling Effects] [Sohn]
Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008): Copyright owners must evaluate whether alleged infringers have made fair use of their material before sending a take down notice.