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, which is another purpose of the DMCA, as discussed.

The DMCA does not apply to companies located outside the jurisdiction of the United States, however.


How Does DMCA Protection extend to “Service Providers?”

A service provider falls under one of the defined exemptions under the Act. 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).

Here are the four categories of activities that a service provider must fall under to be exempt from liability:

  • 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.

“Under Section 512 of the Act, most service providers must designate an agent to receive notice of any infringement claims and register the agent’s contact information with the U.S. Copyright Office (a DMCA Registration). Service providers must also include this information on their website along with complying with the ‘Notice-and-Takedown’ requirements of the Act. This means if you operate an interactive website that allows users to submit or post content, you need to designate an agent to receive this notice and provide the contact information to the Copyright Office. This also means that upon notification of claimed infringement, you 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.


Giving Proper Notice 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.