Picture it: Your significant time and effort creating a content-rich, customer friendly business website is paying off with rave reviews and new business. Now picture this: a few months after the launch of your website, you stumble across a website that has taken content from your website and reused it.
It’s not clear whether a competitor is trying to appeal to the same customer base or whether an opportunist is using your content in order to raise ad revenue with banner ads. Whatever the reason, you want the infringing content taken down now. There is a solution that can bring immediate results and may avoid having to file a lawsuit.
In 1998, the Digital Millennium Copyright Act (“DMCA”) was passed to increase copyright protection on the internet. Under the Act, a copyright owner can send a DMCA takedown notice to the host of a website that contains the infringing content. In order to avoid liability, the host, usually an internet service provider (“ISP”), must remove any infringing material. Prior to passage of the DMCA, a copyright owner was required to file suit against the infringer in order to have infringing content removed. However, in order for the notice to be effective, it must contain the following four elements –
- The notice must identify the copyrighted work. If there are multiple copyrighted works on the same site, the notice should list all the copyrighted works.
- The notice must identify the location of the infringing material that is to be removed.
- The notice must contain a statement that the copyright owner (or the letter writer) has a good faith belief that the copyright owner or the law does not permit the use of the material.
- The notice must contain a statement that the information is accurate and include contact information for the copyright owner.
If the notice does not substantially comply with these four requirements, an ISP has no obligation to comply with the request.
The DMCA requires the ISP to promptly notify the infringer while also blocking public access to the claimed infringing material. The infringer may file a counter notice with the ISP. In that case, the ISP is then required to reinstate the blocked material within 10-14 days. At that point, the copyright owner’s only option to stop the reinstatement of the infringing material is to file an action in court against the violator.
An ISP is motivated to respond to a takedown notice since the DMCA offers the ISP a safe harbor, or immunity from liability, if it falls within one of the four excluded categories and it complies with the takedown letter. The four excluded categories cover a broad range of ISP activities including transitory communications (publishing without editing or selecting the material), system caching (temporary storage), storage (at the direction of the user without benefit to the ISP), or search engines. To avoid liability, the ISP must also promptly comply with the takedown request.
Although sending a DMCA takedown notice to an ISP is straightforward, there are some other considerations that apply when drafting the notice. It is important to keep in mind the inherently public internet age. A scathing takedown notice might seem like a good idea until it is posted on the internet for all to see. As a result, your image could be significantly tarnished. Many copyright owners have been ridiculed for their over-the-top and baseless takedown notices (take a look at chillingeffects.org to see some examples).
Bottom line: taking public relations into consideration when drafting your takedown notice can go a long way to promoting your image while also protecting your legal rights.
While a valid takedown notice requires that technical requirements are met, the DMCA can provide an economical and swift solution to stop the infringement of copyrighted material.
Please contact Richard Zmijewski or any of our Ann Arbor intellectual property attorneys at (734) 668-4100 if you need additional information on the Digital Millennium Copyright Act or any other intellectual property or internet related matter.