The Digital Millennium Copyright Act (“DMCA”) is something you must be familiar with if you operate a blog, chat room or interactive website. The law has two basic functions. First, it protects copyright owners by providing them with a mechanism to enforce their rights without having to directly sue the infringer! The DMCA allows copyright owners to notify and demand that service providers take down infringing content contained in any medium hosted by the provider. This allows the copyright holder to attempt to stop the infringement other than by making a demand and dealing directly with the actual infringer. This greatly increases the likelihood of stopping the infringement since the service provider may be obligated to act.
But, the second function of this law is to provide certain “service providers” (i.e. ISP’s, email providers, search engines, online auction sites, host providers, chat rooms, interactive websites, news providers, etc.) with immunity from liability for copyright infringement As I explain more below, if you fall under the definition of a service provider, you generally will be immune from liability for copyright infringement by your website users. However, there are limitations against service provider liability.
How Does DMCA Protection extend to Service Providers?
Services providers are generally immune from copyright infringement by users under the DMCA. However, certain requirements must be met before immunity becomes absolute. Under the Act, service providers must comply with the ‘Notice-and-Takedown’ requirements of the Act. This means if operating an interactive website that allows users to submit or post content, a need to designate an agent to receive this notice and provide the contact information to the Copyright Office arises. This also means that upon notification of claimed infringement, an operator must promptly remove, or disable access to, the material in question.
Service providers also need to include a ‘Counter-Notice and Putback’ mechanism to restore access to any material when a counter-notice contesting the infringement claim is received. Finally, all service providers must also accommodate and not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works.
All service providers must include a DMCA Policy on their website. Among other items, this policy should state your website’s intent to comply with the DMCA Notice and Takedown requirements, provide agent contact information and should provide a mechanism for Counter-Notice and Putback, as required under the Act. It should also set forth a policy for the termination of repeat infringers. Service providers should make this policy available on a separate page by using a prominent link labeled “DMCA Policy.” Also, it should be included in the website terms of use.
Is My Company/Organization An Online “Service Provider”?
Email providers, search engines, online auction sites, host providers, chat rooms, interactive websites, news providers, etc. are all generally “service providers” that have immunity from liability for copyright infringement under the DMCA. If your online activities fall under one of four listed categories, your company is a service provider and eligible for protection under the DMCA. If exempt, the provider will be shielded from any monetary damages and would receive a limited shield against any injunction (a court order stopping the illegal activity).
The four categories of activities that a service provider must fall under to be exempt from liability are:
- Transitory communications– a provider that only transmits, routs or provides connections for material coming through a given system (i.e. “ISP‟s). Any data that is transmitted by the provider must be done so by an automatic, technical process without the ability by the provider to select or edit the material or data. So, if the service provider is able to choose what material is shown to some extent, or modify the content, the exemption will not be available. Most service providers don‟t fall under this narrowly defined category.
- System caching– temporary storage of unmodified data made available by some third-party on a system or network controlled or operated by or for the service provider, done in the form of “caching”. This is used on some networks to increase network performance or to reduce network congestion (i.e. Google‟s Web cache).
- Storage of content at the direction of a user of material residing on a system or network controlled or operated by or for the service provider (i.e. hosting websites or forums allowing users to post content). 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 might be apparent) and does not have the right and ability to control the infringing activity. If the provider does have the right to control activity, the provider cannot receive a financial benefit directly attributable to that infringing activity.
- Information location tools such as search engines, directories, indexes, etc. Under this exemption, in order to qualify the provider must lack the requisite knowledge or ability to control the material, or cannot receive financial benefit from the infringing activity if it does have the right to control the content. It must also take down any infringing materials immediately upon notification.
ISPs Need To Designate A DMCA Agent
The DMCA requires that website operators name and register a DMCA designated agent with the U.S. Copyright Office in order to receive immunity from third-party copyright infringement claims under Section 512. Failure to designate at least some DMCA agent and respond/act in the manner required under the DMCA Act can result in service provider liability.
The express language of the DMCA states:
(2) Designated agent. – The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory. [17 U.S.C. 512(c)]
Should ISPs Use a Third-Party DMCA Designated Agent?
A service provider is only required to supply its full legal name, physical street address (not a post office box), any alternate names used by the service provider. Public searches for a website or app (service provider) on the DMCA Designated Agent Directory shows the service provider name, physical address, but not the email or phone number. A third-party designated agent’s physical address and full contact information (name, phone number, and email) can be listed instead. Using actual owner or employee contact information can invite spam and notoriety. Designating a third-party DMCA agent filters inquiries through the contact information listed publicly for your designated agent and not the ISP company/organization.
Reliable third-party designated agent services, including by our law firm for a low annual fee, can save businesses and sole operators a ton of headaches, help safeguard them from liability and protect their privacy. Resolving DMCA disputes in a timely manner is also crucial to avoid triggering a copyright infringement lawsuit as an online service provider
Giving Proper Notice under the DMCA
Copyright holders have legitimate legal rights, which are protected under the DMCA. If you hold copyrights to any works and you discover your rights are being infringed upon, you have the right under the DMCA to send a notice to the service provider. This means you can demand the removal or the blocking of all infringing material directly from the host, or the operators of any mailing list, blog or chat room operator, etc. If this notice is proper, the service provider will be legally required to take down or block any infringing materials.
Your notice must comply with the specific requirements of the DMCA to be effective. Any notice must be a written communication provided to the designated agent of a service provider. Any service provider must promptly comply with any legitimate request from the copyright holder in order to remain exempt from copyright infringement liability. The ISP will also not be liable to the person who posted any infringing material that is taken down or blocked, subject to certain rules under the Act. The alleged infringer can file a counter notice under the DMCA and the service provider must re-post the infringing material.