Blogging and intellectual property rights: Part II

Posted on June 1, 2011

Photo by anonymoouscollective via Flickr Creative Commons

The Digital Millennium Copyright Act (DMCA) is a U.S. copyright law which criminalizes the production and dissemination of technologies intended to circumvent measures that control access to copyrighted works (such as digital rights management tools).  The DMCA includes a controversial “safe harbor” provision for “Service Providers” (SPs) which is designed to shelter SPs from the infringing activities of their users, provided SPs adhere to certain guidelines.  SPs include AOL, Google, Twitter and Facebook.  For the purposes of the DMCA, SPs also broadly include “any entity (the law is unsettled as to whether or not this includes an individual) providing a website that allows users to post or display material.”  Therefore, it is important that bloggers understand the specifics of this “safe harbor” provision of the DMCA and how it may affect you and your blog, especially if your blog is owned by an entity you created, as you may be considered an SP.

Without the “safe harbor” provisions of the DMCA, the risk of potential copyright liability would prevent SPs from providing services such as hosting and transmitting user-generated content. Thus, the DMCA has been essential to the growth of the Internet as an engine for innovation and free expression.  However, the DMCA has also been criticized for making it too easy to remove certain content and links which may, in fact, not be infringing at all.

What are the notice and takedown procedures for web sites?

In order to have an allegedly infringing web site removed (or disabled) from an SP, the copyright owner must provide a “take down” notice to the SP with the following information:

  • The complaining party’s name, address, e-mail and electronic signature
  • The allegedly infringing materials and their URL
  • Sufficient information to identify the copyrighted works
  • A statement by the complaining party that (1) it has a good faith belief that there is no legal basis for the use of the materials complained of and (2) that the contents of the notice are accurate

Once notice is given to the SP, or in circumstances where the SP discovers the infringing material itself, it is required to “expeditiously” remove or disable access to the material. The safe harbor provisions do not require the SP to notify the individual responsible for the allegedly infringing material before removal, but post-removal notification is required.  When an SP receives a “takedown notice”, it is in their best interest to simply adhere to it – even if it is clear no infringement is taking place – because SPs cannot be held liable for taking down content pursuant to a takedown notice.  This might explain why, according to Google, notices targeting a competitor’s site make up more than 50% of the takedown notices received, and more than one-third of such notices are not valid copyright claims.

Counter-notifications

While the DMCA does provide for counter-notifications (which would allow the SP to re-post the allegedly infringing material), the requirements for challenging improper take downs are substantial.  If you believe your material was wrongly removed in response to a DMCA notification, you may make a demand for replacement by sending a counter-notification to the DMCA registered agent of the site that removed your material. Your counter-notification must include:

  • The counter-claimant’s name, address, e-mail and electronic signature
  • The allegedly infringing materials and their URL prior to removal
  • Sufficient information to identify the copyrighted works
  • A verification, under the penalty of perjury, that you have not committed copyright infringement and that removal was improper
  • Consent to local federal court jurisdiction

The SP must promptly notify the claimant of your objection and the claimant must bring a lawsuit within 14 days or else the claim is deemed waived and the material must be restored.

Best practices

The following list of recommended best practices is not intended to be exhaustive.  As always, you should consult with your attorney prior to publishing your website about DMCA compliance and other issues.

  1. In order to qualify for the DMCA safe harbor exemption in the first place, you must (i) post a specific DMCA notice prominently on your blog or website and (ii) designate an agent to receive notices with the US Copyright Office and make that information available on your website
  2. Promptly follow the proper take down, notice and restoration protocols at all times
  3. Adopt and reasonably implement a “repeat infringer” policy that provides for termination of users’ accounts in “appropriate circumstances”
  4. Inform your website viewers of your website policies, terms and conditions.
  5. Note: An SP does not have to actively monitor posted content, nor must it determine on its own whether any given content is legal

Note: An SP need not terminate any user’s account unless it has “actual knowledge” of multiple instances of infringing content, which only occurs when the SP receives a valid DMCA takedown notification.

The information presented herein by the firm is for general informational purposes only and should not be construed as legal advice. You should not act upon any information contained within this blog post without first seeking specific advice from us or from your existing counsel. The firm makes no warranties, representations or claims of any kind with respect to any of the information contained herein.

Daniel Bellizio and Brian Igel are the founders of of Bellizio & Igel, PLLC, a boutique law firm based in New York City that counsels small businesses and entrepreneurs, primarily in fashion, the arts, lifestyles and entertainment.

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