Digital Millennium Copyright Act

by Goeun Son

It was 1976 when Copyright Act became the primary basis of copyright law. At that time, the Congress may not have expected that one thing would become a huge part of copyright issues: the Internet.

Now people can post almost anything from their pictures to music and articles through websites like social media. A problem arises when some users upload copyrighted materials without copyright owner’s permission. As online service providers such as Facebook or Twitter store and distribute those materials, when should those websites be liable for contents? This is where Digital Millennium Copyright Act (“DMCA”) comes into play.

If you believe someone posted your song without your permission, you can take the first step of sending a takedown notice to a website where your song was posted. The DMCA takedown process can be used regardless of whether you have registered your work. You would request the provider to remove material that is infringing your copyright.

A takedown notice must be: 1) In writing 2) Sent to the service provider’s designated agent.

It also must include substantially the following:

1) A physical or electronic signature of a person authorized to act on the copyright owner’s behalf

2) Identification of the owner’s copyrighted work claimed to be infringed.

3) Identification of: the material claimed to be infringing, for material stored by the service provider; or the reference or link to material or activity claimed to be infringing, if the service provider is referring or linking users to an online location containing infringing material or activity.

4) The complaining party’s contact information.

5) A statement that the complaining party has a good faith belief that the infringing material is not authorized by the copyright owner, the copyright owner’s agent or law.

6) A statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.

Service providers that took steps to educate their users, cooperate with copyright owners, remove repeat infringers from there sites were granted an immunity from possible copyright infringement liability (the DMCA Safe Harbor).

After a takedown notice is sent to a service provider, the provider usually notifies the user, who is responsible for engaging in the infringing activity. If that person in good faith does not think the activity is infringing, he can send a counter notice to the service provider explaining why they disagree with the copyright owner. Then the service provider is obligated to forward that counter notice to the person who sent the original takedown notice. Once the service provider has received a valid DMCA counter notice they must wait 10-14 days. If the copyright owner sues the alleged infringer in that time frame the material will remain down, but if no suit is filed, then the service provider must re-activate or allow access to the alleged infringing activity.

As DMCA intends to encourage copyright owners and service providers to work together to combat online copyright infringement, the best way would be for a provider or a user to take down materials in dispute before it gets into a lawsuit.