Title II of the Digital Millennium Copyright Act (DMCA) provides a safe harbor for online service providers that allow users to self-post content. For companies with Web 2.0 enabled sites, 17 U.S.C. § 512(c) limits liability “for infringement of copyright by reason of the storage at the direction of a user.”  But this safe harbor provision only applies where the provider acts to remove copyrighted material from its site upon being informed of it. This post discusses the DMCA and its implementation.

The DMCA limits liability to service providers even if they have actual knowledge of infringing activity.  But copyright holders may protect their rights by issuing a written takedown notice to service providers. The takedown notice must identify the copyrighted work, identify the infringing material, provide the complainant’s contact information, provide a statement that the use of copyrighted material is unauthorized, provide a statement under penalty of perjury of the complainant’s good faith belief that the takedown notice is accurate and the complainant is authorized to issue the notice, and the notice must be electronically signed. 

If the six elements listed above are present, the provider must act “expeditiously to remove, or disable access to, the material.”  § 512(c)(1)(A)(iii). The posting user, however, has recourse, and can issue a counter notice. The counter notice must identify the material removed, include the user’s contact information and a statement that she consents to federal jurisdiction where she resides, include a statement under penalty of perjury of the user’s good faith belief that the material was removed by mistake or misidentification, and the notice must be electronically signed. 

At this point, the provider must then send the counter notice to the original complainant, informing it that the provider will repost the material in not less than 10 and not more than 14 business days unless the complainant provides subsequent notice that it has filed court action against the user, seeking restraint. 

A service provider’s DMCA policy should be displayed where copyright owners can quickly find it.  Preferably, a link to the policy should be located on the home page of the site.  The DMCA policy itself should make clear that the provider will address copyright infringement allegations in accordance with DMCA procedures.  At a minimum, a provider should explain its takedown notice, which should comply with § 512 as explained above. 

Perhaps most importantly, Section 512 expressly states that the limitations on liability apply only to online service providers that have designated with the Copyright Office an agent to receive the infringement notices.  The online service provider must file the agent’s name, address, phone number, and e-mail address, plus a fee, to register the agent with the Copyright Office.

Seth Jaffe (seth.jaffe@nortonrosefulbright.com / +1 713 651 5370) is an associate in Norton Rose Fulbright’s intellectual property practice group.