This month at InternetLitigators we have had a number of questions arise concerning the use of copyright protected material on the Internet. While issues of copyright and the proper use of information on the Internet can be quite complicated there is one tool that every website owner and content publisher should be familiar with: the takedown requirements of the Digital Millennium Copyright Act.

Website operators publishing the transitory content of others are faced regularly with the dilemma that arises when a customer, blogger, advertiser, or other content provider posts content on the website operator’s website. This is a very common occurrence, particularly in the Web 2.0 environment of social networking and shared content, where often the Website Operator has no control over the information and images being published on its website. Any website operator that wishes to avoid liability for copyright infringement arising out of either taking down a customer’s material that should have properly been left online or improperly leaving up material posted by a customer that should properly have been taken down will eventually become familiar with the DMCA.

The DMCA has several components. The most relevant portion to this article, however, is the Safe Harbor Provisions Section 512(c) which sets forth the procedures that Website Operators must strictly follow in order to successfully avoid this dilemma and remain within the liability limitations known as the Safe Harbor Provisions. Website Operators must follow these requirements strictly in order to remain within the protection of the DMCA Safe Harbor Provisions. The fact that these requirements must be so strictly followed can be used to the advantage of a content owner in the effort to protect its content. At InternetLitigators, we often assist our website owner clients in setting up compliant DMCA policies and procedures and in many situations serve as the registered Agent for the receipt of any DMCA notices. This DMCA policy together with a proper Terms of Service and Privacy Policy are often the first and most important documents for the establishment of a new Web based business. This document tells anyone with a copyright complaint as to information on your website how to contact you and what is required.

As a content owner, if you find your content (typically images or written material) posted on the Internet, you can contact the website operator and request that the information be removed. In order to trigger the requirements of the DMCA you must include substantially everything that is required under the act to constitute a proper “takedown notice”.

In most instances, the Act requires that a valid takedown notice include the following:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

In order for the website operator receiving a notice in substantial compliance with the above requirements to remain within the Safe Harbor Provisions they will in most instances be required to remove or disable access to the identified material “expeditiously” and notify the customer that the information has been removed or that access has been disabled. The customer that placed the material on the Internet then has the opportunity to provide a “counter notice” to the Website owner which would then require the website owner to replace the material within 10 – 14 days following receipt of the counter notice.

A proper counter notice under the act must contain the following information:

1. A physical or electronic signature of the subscriber.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Upon the re-posting of the information, the person submitting the initial take down notice may notify the Website operator that it has filed a court action seeking an order restraining the infringing activity.

There are many exceptions to these general requirements. If you have specific questions about how the DMCA may apply to your particular situation you should seek guidance from competent legal counsel familiar with the Internet. In general, a good basic understanding the DMCA Safe Harbor (take down) provisions is important to the operation of any successful website involved in publishing the transitory content of others. The DMCA Safe Harbor provisions also serve as an important tool for any content owner seeking to protect its right to content.

About: Jeffrey A. Cohen is a partner in the El Segundo, California office of Cohen & Richardson, LLP. Mr. Cohen can be reached at JCohen [at] InternetLitigators.com. The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information.