Question

What is the Digital Millennium Copyright Act (DMCA)?

Answer

In 1998 Congress enacted the DMCA, which expanded federal copyright law to address the issues created by the internet. Basically, the DMCA provides copyright owners with a fast and inexpensive way to remove infringing online content, while also providing immunity to website operators for any copyright infringement created by its users.

But first, before we jump into the DMCA, a little refresher on how copyright works.

What Can Be Copyrighted?

Any original work developed with some creativity that is fixed in a tangible medium can be copyrighted by the true owner of the work.

What does “fixed in a tangible medium” mean?

Don’t let that legalese scare you, it’s pretty easy to meet the requirement of fixing something in a tangible medium. For example, if you are writing a script, program or piece of code you can meet the fixation requirement by writing it down on a piece of paper or in a word document. Similarly if you are a photographer or graphic designer you can meet the fixation requirement with a photo or copy of your work.

Am I the “true owner” of the work?

You might be! The true owner of the work can be a creator, contractor, or even employer. In some situations, even if you created the work you might not be the true owner. For example, if you created something as an employee or as an independent contractor determining who owns that work can get a bit murky (whoever hired you may be the true owner!). So if you have any questions about who the true owner of the work is or copyright in general, reach out to an attorney, like us! You can reach us at bertie@inbetterwetrust.com—we offer free 30-minute consultations.

When Does Someone “Infringe” On Copyright?

If someone shares, distributes or exploits your copyright without your permission they have infringed on your copyright. Even if they link back to you as the original source they have still infringed on your copyright by sharing it without your permission. Practically speaking, some copyright owners choose not to pursue any action against these individuals if they are linked as the original source because they view this as a free marketing tool. Ultimately, as the copyright owner you have the final say.

Breaking Down the DMCA

The DMCA provides Internet Service Providers (ISP) with immunity (the DMCA “Safe Harbor”) from copyright infringement. If you have a Website where users have the ability to post or store anything, you should know more about the DMCA. A few common examples on websites that trigger the DMCA include:

• Uploaded photos/videos;
• Comments;
• Reviews

What Is An Internet Service Provider (ISP)?

The term ISP is a little misleading,  as it has nothing to do with the internet service provider you use in your home, which may have been what came to mind as you were reading! Think of an ISP as any website where data flows freely, such as a platform where people can post their own images, comments, and reviews. Accordingly, an ISP can be a social media platform, web host, or even a website. For example, Instagram, Youtube, Godaddy, and Amazon are all ISPs. Similarly, your website may be considered an ISP if it allows users to post or store any content.

The Safe Harbor Protection Shields ISPs From Liability.

For context, the DMCA Safe Harbor protection was put in place to incentivize ISPs to allow user generated content (“UGC”) on their platforms. Thus, the Safe Harbor gives ISPs peace of mind by carving out a way that ISPs can encourage UGC, while remaining immune from copyright infringement created by its users.

ISPs must meet certain criteria to qualify under the Safe Harbor such as posting and enforcing their copyright policy. If you are considered an ISP and would like to minimize your liability, then having a DMCA Policy available on your website in either your Terms of Use or Privacy Policy is a must.

Under the Safe Harbor, ISPs are only required to take down content when they know or should know about the specific infringing content. Basically, this means that once the ISP receives a DMCA Takedown Notice they will take the infringing content down to maintain its immunity under the Safe Harbor, but not usually before then. If the ISP receives a DMCA Takedown Notice and fails to remove the infringing content they could lose their Safe Harbor status, which in turn opens them up to liability for copyright infringement.

What Is a DMCA Agent?

For ISPs to maintain their Safe Harbor status, they must register with the U.S. Copyright Office to designate an agent to receive Takedown Notices. There is cost associated with registering an agent with the U.S. Copyright Office, but it’s pretty low compared to other government agencies! The fee is $6, and you don’t have to register again for another 3 years once your agent has been initially registered. So if you could be an ISP, why not register? You can do it yourself or we can help you file it.

If you’re looking for an ISP’s DMCA agent, typically, the DMCA agent’s contact information can be found in the ISPs Terms of Use or Privacy Policy. If you can not find their DMCA agent listed there, the U.S. Copyright Office has a directory you can search as well.

Responding to Takedown Notices

After receiving the Takedown Notice, the ISP should remove the content and email the infringing party. Be aware that the infringing party can respond with a counter notice, if they state in good faith that the content that was removed is not infringing. After receiving the counter notice, if the copyright owner does not file a copyright infringement suit, then the ISP must put the content back up or they face potential liability to the user if the removal was unwarranted. We know, it’s complicated, but that’s why we’re here to help!

Wrapping It All Up….

The DMCA aims to strike a balance between encouraging user generated content and not penalizing website operators for the potential copyright violations created by its users. Key takeaway: if users post or store anything on your website, the DMCA matters. To protect your business from potential copyright infringement lawsuits you should consider registering for the DMCA.

If you are looking into DMCA registration or drafting a DMCA Policy our team can certainly help you. Please feel free to reach out to us at bertie@inbetterwetrust.com to schedule a free 30-minute consultation.