Digital Millennium Copyright Act Lawyer Discusses DMCA Takedown Notice Provisions

Welcome to Copyright Law Radio.  My name is Attorney Enrico Schaefer. Today, we’re going to be talking about the Online Copyright Infringement Liability Limitation Act (OCILLA), which is a provision in the 1998 Digital Millennium Copyright Act, known as the DMCA, and how it affects OSP’s or online service providers, which includes ISP’s, web hosts, and the like.  So, what are we talking about here today?  We’re talking about claims of copyright infringement.  If you are a copyright owner and you see that your copyright protected material has been posted on a third party website, you need to understand what legal options you may have, not only against the person infringing your copyright, but in order to have those materials removed from the website so that further dissemination of your copyright-protected work does not occur. 

So, congress, back in 1998, anticipated the problem of copyright infringement on the internet and passed the Digital Millennium Copyright Act, the DMCA.  Part of those provisions in the DMCA included the Online Copyright Infringement Liability Limitation Act (OCILLA), which is essentially the safe harbor provision for OSP’s.  OSP’s are third party publisher of potentially copyright protected works and how those works get taken down off the internet is the subject of today’s show. 

As an attorney who protects copyright owners and as a lawyer who’ll sometimes represent people who are accused of copyright infringement on the internet, I know both sides of the story.  The first thing that a copyright owner needs to understand is that there are these summary provisions which allows you to remove the copyright-protected work from the internet, from the websites or video upload sites , such as YouTube, where the infringing work is posted. 

There is the safe harbor provision under section 512 of the DMCA which basically provides the OSP immunity as long as they have a takedown procedure that goes something like this.  Let’s say that you’re the copyright owner and you hire a copyright attorney who specializes in internet law to have the copyright material removed.  The first thing that you are going to do is you’re going to provide your attorney enough information to establish that, in fact, you have copyright protection.  That could be a certificate of copyright, a filed copyright with the copyright office, or, in addition to a copyright registration, you could just simply affirm that you are the copyright owner, the author of the original work.  So, here’s the example.

You hire your copyright attorney.  The copyright attorney contacts the OSP, the service provider.  Let’s say, in this case, YouTube.  And says, “Hey, this is an inappropriate video to be up on YouTube.  I am the copyright owner of this work.”  So, as your copyright attorney, I’m going to send YouTube, pursuant to their policy, a takedown notice.  And in that takedown notice, I’m going to have to include my contact information as your copyright attorney, the name of the copyright protected work.  Let’s say, the song, in the case of YouTube.  I’m going to provide the address of the copied song, where it exists on YouTube.  I’m going to provide a statement that I have a good faith belief that the use or upload of the videos was not authorized by the copyright owner, my client.  I am going to provide a statement that the information in my takedown notification under the DMCA is, in fact, accurate, and I’m going to declare, under penalty of perjury, that I am the authorized agent to speak on the copyright owner’s behalf to act for the copyright holder in the takedown notice procedure.  And then I, as the copyright attorney, am going to provide my signature.  I’m going to provide all of that to, in this case, YouTube, or some other OSP.  And they are then going to start a process that goes something like this.

Typically, the OSP, even before providing notice to the person who posted the infringing material, is going to take the video down, or the OSP is going to remove the content from the website right out of gate.  Then the OSP will tell the person who posted the material that the information has been taken down.  And the person who hosted the copyright infringing material will have the option of sending a counter-notification to the OSP, in this case, YouTube, if they believe that the material was taken down inappropriate.  For instance, if they say that, in fact, the copyright isn’t owned by the person who is providing notice under the safe harbor provisions.  That counter-notification, again, is going to provide contact information, identification of where the video was located, and a statement under penalty of perjury that the responding person has good faith belief that the material mistakenly taken down or removed.  A  Statement consenting to the jurisdiction of the local U.S. Federal District Court where the person responding is located.  If outside the U.S., that could be in any jurisdiction in which the OSP is located.  And, of course, their signature. 

Now, this puts the ball back in the person who has filed the DMCA takedown notice, into their court.  So, as the copyright attorney for you, now, I’m going to have to advise you that because a counter-notification was provided, you have the option, within 10-14 business days, to file a lawsuit.  And if you don’t, then the copyright protected material will go back up.  And the end result of all of that is that YouTube or the OSP has no liability as long as it adheres to the DMCA takedown policy procedure.  So, as long as an OSP has a takedown policy and procedure, then they have immunity for a liability, for a direct or contributory infringement, as a result of that copyright protected material being posted on their site. 

So, these are some of the basics that copyright owners, people who are accused of copyright infringement, and OSP’s (service providers) need to understand under the Digital Millennium Copyright Act.

That’s all for Copyright Law Radio Today.  We will see you next time.