While browsing the Web or checking links to your site, you find content that you've written, photos you've taken, or graphics that you've designed are being used on another Web site without your permission. Formerly, you needed to correspond with the owner of the Web site, if you could find them, to negotiate having the infringing material removed, Now, you can have the Internet Service Provider remove it, if they are located in the US. While large entertainment companies have been using the procedures to stop Web distribution of their products, the remedy is available to any holder of a U.S. copyright who discovers their rights are being infringed upon.

The Digital Millennium Copyright Act (DMCA) limited liability for online service providers for copyright infringements committed by online users. The law gives copyright owners a process for requiring ISPs to take down infringing materials. In return, the ISPs are protected from monetary damages. The DMCA covers material covered by copyright, so writings, music, graphics, design, etc. are all covered.

The service provider must:

1. Designate an agent for service, with name and contact information
2. Provide that information to the US Copyright Office
3. Develop and post a policy for termination of repeat offenders and provide network users with information about copyright laws
4. Comply with take down and put back notice requirements, and
5. Ensure that the system accommodates industry-standard technical measures used by owners to protect their works from unlawful access and copyright infringement.

How It Works

The person who owns the copyright to the work, or their authorized agent, finds their property published on a Web site without permission. The content owner may or may not be able to identify who posted the material but can determine where the site resides from the URL. The content owner finds out who is the registered agent for receiving notifications of alleged copyright infringement from the US Copyright Office's list at http://www.loc.gov/copyright/onlinesp/.

Take Down Notices

The content owner sends a written notification to the service provider's agent. Notices should be in substantial compliance with the following six points. Minor defects won't invalidate the notice, but major ones will. The notification need not be written by an attorney.

1. The notice should be signed by the owner of the exclusive right that was allegedly infringed, either the owner of the copyright or the individual to whom the owner has sold or given the right.
2. The notice should identify the copyrighted work allegedly infringed.
3. The notice should identify the allegedly infringing material and provide enough information so that the service provider can find the material on the offending Web site.

   Note: The information in points 2 and 3 must be specific. For example, Lucasfilm representatives sent general notices to service providers that hosted Star Wars fan sites. The notices did not identify specific infringing material or locations within Web sites where the allegedly infringing material could be found. The notices were fatally flawed.

4. The notice should provide adequate contact information for the person making the complaint. Adequate contact information would include the name, address, telephone number, email, etc.
5. The notice should include a statement that the allegedly infringing material is not authorized. This statement must be made in good faith.
6. The notice should include a statement under penalty of perjury that the information in the letter is accurate and that the complainant is authorized to act.

   Point Six is particularly important, as the perjury provision should eliminate frivolous claims. A complainant who is authorized to act should know whether or not the poster has permission.

The service provider, upon receipt of the notice, must expeditiously remove or block access to the material, using the information provided in the notification. Once the identity of the poster is known, the service provider sends an official notice of the allegation and the imminent action to remove or block access to the material to the poster. The service provider then removes the material or blocks access to the site. This is typically done within 24-48 hours.

The service provider lets the content owner know that access to the material has been blocked. The content owner may respond by requesting the name of the poster. The content owner may obtain a subpoena from the clerk of a court under Section 512(h) of the DMCA to compel the service provider to produce the name.

Put Back Notices

The poster may file a DMCA counternotification contesting the removal. If the service provider receives a counternotification from the poster, it will be forwarded to the content owner. Ten to fourteen days later, the service provider will put the material back online. At that point, the content owner and the poster would know each other's identities and would continue any dispute themselves. The service provider is protected from liability for both the posting and the removal.

Future Issues

The DCMA provisions apply only to US service providers. The US Trade Representative is currently negotiating for better protection for US intellectual property rights in other countries.

There is some controversy over the aggressive way the entertainment industry is using the takedon notices. The Recording Industry of America Association is currently embroiled in a court case with Verizon over the disclosure of the name of an individual swapping music files.

Additional resources:
The Copyright Office offers a summary of the DCMA at http://www.copyright.gov/legislation/dmca.pdf.

Nolo Press offers an explanation of the DCMA at http://www.nolo.com.