August 06, 2009

DMCA Takedowns to Search Engines Effective in Fighting Copyright Infringement

Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act.  Mary’s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials.


Under the DMCA’s § 512(d)(3), a service provider that provides “information location tools” is not liable for copyright infringement if it does not have actual or constructive knowledge that the material is infringing.  If the service provider does have actual knowledge that indexed, hosted, or linked material is infringing, it must “expeditiously” take down the infringing content to remain eligible for the safe harbor.  Additionally, the service provider cannot profit primarily from the infringing content.

The notice to the service provider has to meet certain technical requirements as well, such as a statement identifying the material and any other information that would help the service provider reasonably identify and locate the infringing content.  As Mary’s statistics indicate, sending a takedown notice to search engines can block access to the infringing content to up to 98% of normal Internet users.  The same provisions apply to the ISPs that host the sites, so sending a takedown notice to the web host that is currently hosting the content is another effective method of attack against copyright infringement. 

It is also important to note that Google and Yahoo send DMCA takedown notices to Chillingeffects.org, a clearinghouse for DMCA abuse and free speech information, for publication.  This should be considered in creating a wide-scale copyright protection strategy.  Ultimately, the protection of intellectual property, including copyright and trademark rights, requires both a legal strategy and a business strategy, and an effective approach should combine considerations of legal leverage over copyright infringers as well as public relations, image management, and other non-legal concerns.  If you are a creative artist who needs help protecting your online or offline works from copyright infringement, please contact a copyright attorney who is knowledgeable in this area.

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