DMCA: Giving and Getting Take Down Notices

April 26, 2007 on 7:09 pm | In DMCA |

Ok, so you’ve got online content. Or you’ve seen your content online. Should you send a take down notice or get one, this informal check list hopes to help you get it right, the first time:

1) Follow the rules. Seems obvious, but if you’re a web host, content publisher, transmitter, the DMCA (17 USC 512) may provide some liability insulation. If you put the content up - it’s your web site for example - the DMCA is not going to work for you if you receive a take down notice but it will dictate how you respond. So take note.

To qualify under the first prong of the DMCA for liability insulation, the transmission of the material was initiated by or at the direction of a person OTHER than you. You’ll have to call me to find out why I say “some” liability insulation. It is not a complete immunity. If you qualify though and follow the rules, you - aka a service provider - are not liable for money damages or injunctive relief for copyright infringement.

2) Get your notice done right. To send an effective notice you MUST put it in writing. An irate phone call won’t work. The notice must meet these requirements:

- be signed by an authorized person (either owner of an exclusive right that is allegedly infringed or their agent)

- identify what was infringed. Specifically it must list or describe 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.

- identify the material that is infringing - with “reasonably sufficient” detail - to permit the service provider to locate the material.

- include the complaining parties complete contact info.

- include the following statements:

 

“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; ” and

“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.”

3) Agent designated? If you’re a service provider seeking insulation under DMCA you MUST designate an agent with the Copyright Office.

4) Take reasonable steps to Contact Complainer with Inadequate Notice. If a notice comes in that substantially complies, contact the complainer promptly to maintain insulation.

5) Take Down the Content in Accordance with 512(g). (Remember that this posting is general info only and may not apply to your situation. Nothing substitutes for talking to a lawyer about your factually specific situation)

- notify your customer (the content owner) that their content is coming down or access is disabled

- within 10 days of a counter notice from your customer, inform complainer that you will replace the content or cease disabling access if your customer sends you a counter-notice

- replace the removed material and cease disabling in not less than 10 nor more than 14 business days after receipt of counter notice UNLESS your customer’s designated agnt gets notice from complainant that an action has been filed

6) Counter-notice needed? Your web host sends you a take down notice they received from a third party. Now what?

- Send a counter-notice to the web host’s designated agent that:

- has your signature

- states that the content in question has been removed, disabled and the location where it was

- statements that “the subscriber 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”

- include your complete contact info and a statement that “a statement that the subscriber consents 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 the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.”

If your content is taken down and you receive a take down order, your recourse against your web host is limited.