DMCA Takedown Notices -Requirements and Risks

Christopher Barnett Archives Posted on September 11, 2007 9:41 AM DMCA Takedown Notices –Requirements and Risks Section 512 of the Digital Millennium Copyright Act (DMCA) gives providers of online content “safe harbor” from liability for copyright-infringing material stored on their web domains by third parties. In most cases, however, the shield provided by Section 512 is used as a sword by copyright owners, who are able to send “DMCA takedown notices” to content providers in order to force those providers to remove infringing content. Regardless of whether your business is on the sending or receiving end of such a notice, it is important to be aware of the requirements that the notice must satisfy in order for it to carry legal weight. While Section 512 contains other liability-limiting provisions applicable to other types of service providers, the part of the act that most associate with “safe harbor” requires that a takedown notice contain:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 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. 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. 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. 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. 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.

A notice that does not substantially comply with all of the above requirements is not effective to give a content service provider notice that infringing material is present on their domain. Although most of the requirements are straightforward, a person sending a notice should pay special attention to the second and third elements, especially in light of the fact that the notice must be signed by a responsible person under penalty of perjury. A sloppy description of the copyrighted material and/or a sloppy description of the content alleged to infringe that copyright, or transmission of a purported takedown notice that does not fall within the scope of the protections afforded under the Copyright Act, could result in an inference that there was no good faith basis for the takedown requested under the notice. A separate subpart of Section 512 provides that a “knowing,” “material” misrepresentation that online content is infringing could result in liability for damages, costs and attorney’s fees to the alleged infringer, the content service provider, or both. For example, in the case of Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, (N.D.Cal. 2004), Diebold sent a takedown notice to the Internet service provider for two college students, who had published on their web site, in an effort to draw critical attention to voting machines manufactured by Diebold, internal e-mails exchanged among Diebold employees. In its opinion, the court found that Diebold had violated Section 512, holding:

No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by copyright, and there is no genuine issue of fact that Diebold knew-and indeed that it specifically intended-that its letters…would result in prevention of publication of that content.

Diebold eventually agreed to a settlement in which it paid the plaintiffs $125,000 in damages and fees. These issues are receiving renewed attention in the wake of news regarding notice sent by the Science Fiction and Fantasy Writers of America (SFWA) to Scribd.com, a site allowing users to upload and share text files. The SFWA’s notice apparently included material – such as a schoolteacher’s bibliography for students – that could not reasonably be argued as infringing any copyright. (The SFWA has since issued a statement regarding the flaws in its notice and suspended the committee that was responsible for sending the notice.) It remains to be seen whether any legal liability will flow from the incident, but it should serve as a reminder to anyone dealing with either end of a takedown notice that it pays to be aware of just what the DMCA does – and does not – allow.

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