Any company with a website or a blog knows the power of content. Blog posts, photographs, videos, infographics and more are vital components of today’s digital economy – an economy that seems based on the widespread sharing of art, creativity, and ideas.
But what if the content being posted to that website or blog was not the site owner’s property to post in the first place? A creative work, such as a written blog post or a photograph, is embued with copyright protection that enables the person who created the work to benefit from that work. If copyrighted work has been placed on a private businesses’ web page without permission and appropriate compensation, the business owner responsible for the website may receive a Digital Millennium Copyright Act (DMCA) takedown notice demanding the removal of the copyright-protected content.
This can be a frightening message to receive, but is not as threatening as it may first seem. And understanding why the DMCA exists and what it aims to do can help guide your next actions.
What is the DMCA?
The Digital Millennium Copyright Act (DMCA – 17 USC 512) was signed into law in 1998. It was intended to strengthen online copyright protection in a burgeoning international, virtual economy not restricted by traditional boundaries, while also balancing the risks for online service providers who host websites where content is posted. Principally, the DMCA exempts internet service providers from direct and indirect liability for copyright infringement if certain protocols are followed.
Under the DMCA, all online service providers must designate an agent to whom copyright infringement notices may be sent. That agent may be an employee or a third party under contract with the online service provider. When an online service provider receives written notice of an infringement claim from a copyright holder, the online service provider must “expeditiously” (i.e., promptly) block access to alleged infringing material or remove that material from the system (i.e., “take it down”). The online service provider then must notify its customer/user who posted the material that the online service provider received a copyright notice that led to the take down.
Timely Response is Crucial
If the customer/user responds with a written counter-notice to the online service provider explaining that the take down was done in error, the online service provider must in turn notify the copyright holder of the counter notice. If the copyright holder does not file a lawsuit for copyright infringement within 14 calendar days after being served with the counter-notice, the online service provider may put the accused infringing material back up on the website.
To keep within the auspices of the DMCA, in addition to following the takedown protocol, an online service provider, such as a business operating a website, must implement an account termination policy for repeat infringers, with proper notice to its users of such policy, and must accommodate standard copy protection systems.
While the DMCA offers vital protections for copyright holders and online service providers, it also creates plenty of gray areas surrounding what is and what is not “fair use” – the principle that gives third parties the right to use a copyright-protected work without compensation or permission.
The digital landscape has driven changes to the fair use doctrine over the years, perhaps most notably in a 2015 decision that held a copyright holder, Universal Music Group, liable for damages after it dispatched a DMCA takedown notice without properly considering fair use.
Once you have been served with a takedown notice, quick action is crucial. An experienced copyright attorney can evaluate your situation and advise you whether your best step is to remove the allegedly infringing work under the DMCA takedown protocol or whether you have a strong case to argue fair use or another legal approach.
The Philadelphia and Wilmington intellectual property lawyers at Panitch Schwarze have decades of experience in working with copyright holders. Contact us at 888-291-5676. We can help you respond to a DMCA takedown letter in a manner that keeps your best interests in mind.