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Balancing is hard, especially when balancing competing interests. While loved and hated by many, the DMCA tries to balance the interests of Internet service providers, copyright owners and content providers.

Balancing is hard, especially when balancing competing interests. While loved and hated by many, the DMCA tries to balance the interests of Internet service providers, copyright owners and content providers.

    To your average person, “Intellectual Property” law seems much like algebra- boring and properly placed in the “hey, when am I ever going to use it?” category.

     But the Internet has changed all that. People post photos on Pinterest and Instagram, they make videos and post them on YouTube, Vimo or Vine and share music on sites like Vuze and LimeWire. Then there’s Facebook, Twitter, Tumblr and a social media platform for whatever it is that you want to put out there in the ether.

     Even during the early days of the Internet, before “social network” became a technical term, there was a lot of activity online. So, it was no surprise when both copyright owners and Internet service providers (or “ISP”‘s for short) went to the government and asked for a new legal framework to address infringement that happens on the Internet. ISP’s felt they were in a bind because they had no easy way to monitor the millions (or billions) of postings on their sites. Yet they were at risk for being held liable for any infringing material posted on their respective services. On the other hand, copyright owners also felt helpless because the Internet now made it very easy for unauthorized use and distribution of their work to happen on a large scale.

     And so, the Digital Millennium Copyright Act, or “DMCA” was born. The DMCA, which President Clinton signed into law in October 1998, also addresses some treaty and Copyright Office issues, but we’ll leave those aside for the time being. What we’re really interested in at this point is Title II of the DMCA, which is the “Online Copyright Infringement Liability Limitation Act.” Title II added a new section–Section 512– to the existing U.S. Copyright Act.

     While loved and hated by many, Title II/Section 512 was meant to strike a balance between the needs of ISP providers, copyright owners and people posting content. It provides a “safe harbor” from liability for ISP providers and also a formalized procedure for copyright owners to notify ISP’s of infringing material on service provider sites. It’s true that Section 512 of the DMCA is far from perfect. But there is also widespread misunderstanding about many of the DMCA’s provisions.

     For example, many copyright owners may not understand that a letter to the ISP complaining about infringing material is not enough. Under the law, a copyright owner’s notice to the ISP must include specific information. If the copyright owner’s letter doesn’t include all the needed information, the ISP is unable to take action. In fact, under these circumstances, the ISP risks being sued by the person who put up the allegedly infringing content if the ISP removes the questionable material.  In short, the ISP provider is not only potentially liable to the copyright owner, but even more so to the poster for taking down his or her website, blog or post. Following the DMCA rules to the letter is what protects the ISP from a torrent of lawsuits for removing questionable user-generated material from the ISP’s site.

     “Take-Down Notice” is the  formal name for the copyright owner’s notice to the ISP that the ISP’s site is posting infringing material.  To be effective, the copyright owner must send a written Take-Down Notice to the ISP’s “designated agent”. In other words, simply telephoning or sending a complaint to the ISP’s general address might not be enough. The Take-Down Notice also must  include (among other items):

  1. 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;
  2. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  3. Information sufficient to identify the copyrighted work(s) claimed to have been infringed;
  4. Information sufficient to identify the material that is claimed to be infringing and information reasonably sufficient to permit the ISP to locate the material;
  5. The complaining party’s contact information; and
  6. A statement that the information in the notice 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.

    On the other hand, many people who feel that their material  was unfairly “taken down” from a particular website may not understand that the ISP is obligated to take action once it receives proper notice from the copyright owner and has notified the party who posted the material in question.

     While the DMCA Take-Down Notice” procedures aren’t perfect and have many nuances that require consideration, it helps to know that the applicable procedures follow a legal frame work.  We’ll be diving into more detail on Take-Down Notices later in the week. In the meantime, try taking a peak at a  service provider’s written Take-Down procedure on their website. For example, Pinterest has an “About Pinterest” section that includes a “Copyright” sub-section with information on Take-Down notices, as well as a copyright complaint form that copyright owners can submit to Pinterest online.  Pinterest also has a list of required information in the event that the copyright owner does not want to use Pinterest’s form.

A few copyright owners have been kind enough to share with us their experiences with Pinterest’s take-down procedure- have you ever contacted Pinterest or another service provider about possible infringement? Were you able to resolve the issue using the service provider’s take-down procedure?

This post is intended to convey general information only and should not be construed as a legal opinion or legal advice.  Any opinions expressed are our own. Readers should not take any action, or refrain from taking any action, based upon the information contained in our site and posts, but should consult with their own attorney concerning their own situation and  their specific legal questions. Visiting our website, reading posts and/or posting comments does not establish any form of attorney-client relationship with us.

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