Digital Millennium Copyright Act
Reading up on the Digital Millennium Copyright Act (DMCA) can be an intimidating task, but it needn’t be. At MUSO, DMCA is the cornerstone of our anti-piracy service, but whilst there are hundreds of in depth articles analysing this United States copyright law, in this article we’ll explain how you can send your own DMCA notice, while discussing how MUSO uses this law to enable our users to send out DMCAs quickly and easily.
DMCA is a copyright regulation from the United States, that first came into effect on October 1998 and has a number of different parts. One is to protect access to or copying of a copyrighted work. Another is that it gives web hosts and Internet service providers a safe harbour from copyright infringement claims, if they implement certain notice or takedown procedures.
Safe Harbour is dealt with in section 512 of the law. Pirated files are often stored and transmitted through the networks of third parties, such as online service providers (OSPs) and search engines. Safe Harbour provisions protect OSPs from liability for the activities of its users and the vast majority of sites comply with DMCA safe harbour to avoid being shut down.
In order to qualify for safe harbour protection, a service provider who hosts content must:
- Have no knowledge of, or financial benefit from, infringing activity on its network.
- Have a copyright policy and provide proper notification of that policy to its subscribers.
- List an agent to deal with copyright complaints.
DMCA is a simple process to follow, but can quickly become time consuming. To break it down even further, the example below explains how the takedown procedure works.
- Joe puts a video with copy of Mark’s band’s new unreleased track on YouTube.
- Mark, searching the Internet, finds Joe’s copy.
- Saul, Mark’s lawyer, sends a letter to YouTube’s designated agent (see takedown notice paragraph below).
- YouTube takes the video stream down and they advise Joe of this.
- Joe now has the option of sending a counter-notice to YouTube, if he feels the video was taken down unfairly. (see paragraph regarding counter notification, later in the article)
- If Joe does file a valid counter-notice, YouTube notifies Mark, then waits up to 14 business days for a lawsuit to be filed by Saul.
- If Saul does not file a lawsuit, then YouTube must put the material back up.
Creating and sending a DMCA takedown notice is actually a straightforward procedure that can be done by anyone. In order to have an allegedly infringing web page removed or disabled from a service provider’s network, the copyright owner must provide notice to the service provider with the following information:
- The name, address, and electronic signature of the complaining party.
- The infringing materials and their Internet location, or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials.
- Sufficient information to identify the copyrighted works.
- A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of.
- A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner.
Once the notice is given to the service provider or in circumstances where the service provider discovers the infringing material itself, it is required to quickly remove or disable access to the material. The safe harbour provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.
Counter-notification is also required in regards to DMCA. This consists of a written notice to the service provider that the copyright owners’ material has been wrongly removed. The service provider must then notify the claiming party of the individual’s objection. A lawsuit in district court will then need to be provided by the copyright owner within 14 days and the service provider is then required to restore the material to its location on its network. As with safe harbouring and a takedown notice, certain information must be contained with regards to a counter-notice. This should include:
- The subscriber’s name, address, phone number and signature.
- Identification of the material and its location before removal.
- A statement under penalty of perjury, that the material was removed by mistake or misidentification.
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.
If proved that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from its improper removal.
You’re probably wondering how long a DMCA takedown takes, but according to DMCA law there is no specific timeframe for a takedown, with the only timeframe mentioned being section 512’s reference to “expeditious” action. What this means is the takedown is performed with, or acting with, expedition, aka quick and speedy; but the term still hasn’t been determined by the courts in the context of this law. At MUSO we put lots of effort into building relationships with file hosts, working with them to ensure the fastest possible takedown speeds and often get takedown access instantly.
Now you’ve understood the basics of DMCA and how simple it is to follow this procedure to have files removed, you might be wondering how the MUSO service fits in. Monitoring takedown notices to ensure content is actually removed and chasing up any sites that aren’t removing content quickly enough is a laborious and time consuming process. Usually, the scale that’s required to protect a product would involve sending out hundreds or thousands of DMCAs per product, which takes up huge amounts of time and effort just to administer the sending and monitoring of takedown notices. On top of this there is the somewhat more complex and demanding task of finding the pirated files that you want to send takedown notices to. MUSO automates this entire process for our users, presenting them with a list of copyright infringing content for them to review, and providing the ability to issue takedown notices at the click of a button.