Takedown Notices? Antipiracy Weapon or Exercise in Futility? Part 2: What the DMCA Means to You

Astrid Anderson Bear, recounting her frustrating efforts to fight piracy by using takedown notices (see Takedown Notices? Antipiracy Weapon or Exercise in Futility? Part 1), refers in passing to the “DMCA”.  The initials stand for the Digital Millennium Copyright Act, and because it is the bedrock law governing those takedown notices it’s important that every author understand it.  A recent lawsuit involving two titans of industry, Google and Viacom, exemplifies the issues.

It happens that YouTube, a division of Google, carried some film clips uploaded by customers, and it turned out that those clips belonged to Viacom. Upon receipt of Viacom’s complaint, YouTube took the offending content down. Nevertheless Viacom brought a $1 billion infringement claim against Google. Google claimed it had acted properly under the terms of the Digital Millennium Copyright Act.  The court supported Google’s position.

What exactly does the law say?

The Digital Millennium Copyright Act (DMCA), signed into law in October 1998 by President Bill Clinton, “criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works,” according to Wikipedia.

However, one provision of the Act provides a “safe harbor” for Internet Service Providers (like AOL or Yahoo) that carry infringing content. Under Title II, if an ISP is notified by a copyright owner that the ISP is carrying infringing or allegedly infringing content, and promptly removes or blocks access to that content, the ISP does not incur liability. By following the procedures prescribed by Title II of the Act, Google escaped liability.

That same safe harbor is accorded to websites that carry pirated e-books. Title II prescribes the arduous takedown procedure that aggrieved authors and publishers must follow. Infringers that ignore or defy that procedure may be subject to prosecution under DMCA.

But what happens if, after an infringer complies with a takedown notice, the material pops up again? Is the claimant helpless in what Ms. Bear describes as ” the whack-a-mole world of illegal downloads”? Here there is hope for the Astrid Bears of this world. Some lower-court decisions have ruled against websites that re-post infringing content after having been enjoined from doing so.

And what happens if a website doesn’t actually carry infringing content but links to websites that do, or links to software or websites that circumvent or disable DRM?  Again, there is protection for copyright owners from repeat offenders. Unfortunately, some aspects of the Digital Millennium Copyright Act have not been fully tested in the courts.

It may require a Viacom-sized plaintiff (or a Harlan Ellison) to put pirates out of business. Nevertheless, DMCA offers a potentially powerful legal tool for driving back some infringers.

Richard Curtis

For a complete archive of E-Reads postings on piracy, visit Pirate Central.

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3 Responses to Takedown Notices? Antipiracy Weapon or Exercise in Futility? Part 2: What the DMCA Means to You

  1. Rowena Cherry says:

    What about truth in advertising, Richard? What about the trade descriptions act?

    If these sites falsely and mischievously describe recently published, copyrighted works as “freely available”, “complimentary”, “free for everyone”, and so forth, could they be prosecuted for something other than copyright infringement?

  2. Rowena Cherry says:

    “Due to complaints by book companies, files get deleted all the time, so join the club using the form below, and you will be notified the minute a new bookmix has been completed!”

    If the site publishes a statement such as this
    does “Safe Harbor” still cover them?

    The “Free Book” club is a Yahoo group.

  3. Rowena Cherry says:

    OSPs and ISPs are also obligated to ban repeat infringers.

    Quoting OCILLA; The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional safe harbor for online service providers (OSPs, including Internet service providers) and other Internet intermediaries by shielding them for their own acts of direct copyright infringement (when they make unauthorized copies) as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the “Safe Harbor” provision or as “DMCA 512″ because it added Section 512 to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

    …..First, the OSP must “adopt and reasonably implement a policy”[2] of addressing and terminating accounts of users who are found to be “repeat infringers.”

    [2] Second, the OSP must accommodate and not interfere with “standard technical measures.”

    [3] OSPs may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting [4],

    caching [5],

    storing [6],

    or linking [7] to infringing material.

    An OSP who complies with the requirements for a given safe harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material. Section 512(c) applies to OSPs that store infringing material. In addition to the two general requirements that OSPs comply with standard technical measures and remove repeat infringers, § 512(c) also requires that the OSP: 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.” End quote.

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