THE NOTICE AND TAKE DOWN PROVISIONS OF THE DMCA
IVAN HOFFMAN, B.A., J.D.
However, as you will see, the right is accompanied by some restrictive requirements.
Exclusion Of Liability of Service Providers
Having stated the basis for liability above, the general rule is that, except under the circumstances set forth in the statute and discussed below, service providers who qualify are exempt from liability for copyright infringement. This exemption extends to 4 defined categories of services provided:
The requirements for obtaining the exclusion vary somewhat based on the nature of the services provided.
Under the “transitory communications” category above, the provider is exempt if the provider merely acts as a conduit for the data submitted by another and covers the acts of transmitting, routing or providing connections. What is important here is that the data must be transmitted by the provider by an automatic, technical process without the selection or editing of that material or data. Thus if a provider acts more like a publisher in selecting the material, the exemption provided under this category may not be available.
Under the “system caching” category, the exemption is provided if the material that is cached is not modified and that the provider comply with rules about refreshing the material and providing limited access to that material. The rules, while technical in nature, are in general again about keeping the role of the provider to merely a non-active storage facility without other involvement in the data. One difference in this category is that the provider must remove or block access to any allegedly infringing material from the cache once it has been notified that the same material has been removed or blocked at the originating site.
Under the “storage” exemption, the provider may be exempt if it does not have knowledge of an infringement (or is not aware of facts or circumstances from which infringing activity is apparent) and does not have the right and ability to control the infringing activity or if it does have that right, it does not receive a financial benefit directly attributable to that infringing activity. Further, as above, once it receives a notice of infringement (discussed below), it must expeditiously take down or block access to the material. Of great importance, however, is that in order to avail itself of this exemption as a host, the provider must have filed with the copyright office a form designating an agent to receive notifications of the claimed infringement.
Under the information location tools exemption, in order to qualify the provider must again lack the requisite knowledge or ability to control the material and must take it down upon notification and comply with the designation of agent requirements, much as with the previous limitation.
The Notice Provisions
When a copyright proprietor discovers allegedly infringing material on a provider’s service, it has the right to send a notice to the provider demanding the removal or blocking of that material and if the notice is proper and the provider promptly complies, the provider remains exempt from liability to the copyright owner. In addition, the provider is then also exempt from liability to the person who posted the material that is then taken down or blocked, subject to the rules discussed below.
But the notice is very specific in what it requires. Here is what the statute says:
To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:In the event the notice does not comply with the above, then the ineffective notice is not considered as providing the requisite knowledge to the provider to make the provider liable unless the notice “substantially complies” with the requirements and the provider contacts the person sending the notice.
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Since these notices can be subject to being abused, the statutes provides rights in the subscriber who posted the material to respond to the notice by filing a counter notice. In order to avail itself of protection against liability to the subscriber for taking down or blocking the material, the provider must have promptly notified the subscriber that it has removed or blocked or disabled the material and if the subscriber then files the above counter notice under penalty of perjury that complies with the statutory requirements, then the provider must put back the material within 10-14 business days unless the copyright owner files an action in court against the subscriber.
There are some variations on these rules with regard to non-profit, educational institutions.
In Recording Industry Association of America, Inc. vs. Verizon Internet Services, Inc., the Circuit Court of Appeals for the District of Columbia ruled that the supena power under the DMCA does not authorize the issuance of supenas as to those service providers covered by “transitory communications” section of the DMCA but only to the 3 other categories of such service providers.
In regard to the issues in this article, the DMCA tries to seek a balance between the rights of the copyright owner and that of a poster, all the while seeking to not interfere with the free flow of ideas or commerce. Some would see it differently, I am sure. The “answer” of course depends on what seat you occupy.
© 2001 Ivan Hoffman