How to comply with the “safe harbor” provisions of the DMCA (17 USC § 512)

Did you know that, for a website operator to take advantage of Section 512(c) of the DMCA, he must designate a Copyright Agent with the United States Copyright Office? This means that some businesses who think they can rely on Section 512(c), can’t rely on it.

There are also other requirements. So, if you’re interested in learning more, read on…

The Digital Millennium Copyright Act (DMCA) is a fairly significant, and somewhat controversial amendment to the Copyright Act of 1976. Section 512 of the DMCA (a/k/a OCILLA) contains “safe harbor” provisions, limiting liability for copyright infringement for certain activities.

Although there are several very different types of activities which are covered by Section 512 of the DMCA, in my experience, more businesses are interested in Section 512(c). This subsection is about liability of “service providers” for storing copyrighted content at the direction of a user. This could happen if a website allows users to make comments or post images, music, or video content (and a user posts infringing content). Section 512(c) says that, with certain exceptions, a service provider shall not be liable for infringement of copyright for the service provider’s storage of infringing material on a server at the direction of a user, if the service provider:

• does not actually know that the material stored on the server is infringing (or have awareness of facts or circumstances from which infringing activity is apparent);
• does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
• acts expeditiously to remove, or disable access to, infringing material upon knowledge or awareness of infringing activity or upon receipt of a “DMCA Takedown Notice” (a/k/a a “notice of claimed infringement”)

The term “service provider” is defined fairly broadly; and, while it perhaps does not cover every website, it certainly can include websites which fall into the definition, which is in Section 512(k).

However, for online service providers to take advantage of Section 512, they need to comply with certain administrative rules. Specifically, service providers must: (i) Designate a Copyright Agent; (ii) give users notice of a Copyright Policy; and (iii) comply with DMCA Takedown Notices.

i. Designation of a Copyright Agent
This requirement is about publicly telling the world who to contact in the event that a service provider is unknowingly hosting infringing content. So, service providers must designate an agent (it could be a lawyer, an owner, or an employee) who is responsible for handling DMCA Takedown Notices. But, importantly, service providers must file a form with the Copyright Office, so that the agent can be included in the directory of agents maintained by the Copyright Office. More information about how to designate a copyright agent is available from the Copyright Office, here.

ii. Notice of Copyright Policy
Service Providers must also reasonably notify its users (usually via website), of (a) the Service Provider’s Designated Agent’s contact information; and (b) the Service Provider’s copyright infringement policies (including, without limitation, the consequences of repeated infringement). By this notice, users must be notified that the Service Provider responds “expeditiously” to DMCA Takedown Notices (i.e., notices of claimed copyright infringement) and that users who are “repeat infringers” will have their accounts terminated.

Many websites find it helpful to provide the form of an appropriate DMCA Takedown Notice in their policies. There are some formal requirements to such a notice, and giving aggrieved parties (who are perhaps not familiar with Copyright law) detailed instructions can help prevent unnecessary headaches.

Also, while Section 512(c) of the DMCA is really about Copyright law, some businesses use similar provisions for claims of Trademark infringement. See, for example, Godaddy’s Intellectual Property Policy. DISCLAIMER: Although I am familiar with their policy, I do not represent Godaddy.

iii. Comply with DMCA Takedown Notices
The point of the law is that it provides a relatively simple way (at least in comparison to a lawsuit!) for copyright owners to deal with legitimate cases of infringement. However, the procedures recognize that DMCA Takedown Notices could be abused by people who do not own copyright or who are overzealous. So, the law provides a way for a user to provide a service provider with a “Counter Notice,” which is a formal way of telling the Service Provider that the notifying party is wrong or mistaken.

Therefore, Service Providers who receive DMCA Takedown Notices (a/k/a notices of claimed copyright infringement) must follow proper procedure. If such a notice is in proper form, the Service Provider must:
(1) “expeditiously” take down or disable access to the infringing content;
(2) notify the user who posted the infringing content, so that they can file a “Counter Notice”;
(3) if the user files a proper Counter Notice, give a copy of the Counter Notice to the party who sent the original notice; and
(4) put the content back up or re-enable access to the content.

This post is simply meant to be an overview. As is the case with many legal topics, there can be many facts and circumstances which can lead to different outcomes. So, if you are looking into this topic, you should not rely on this post, and you should engage a lawyer immediately to give you advice!