DMCA SAFE HARBOR PROVISIONS

                The Digital Millennium Copyright Act (“DMCA”) includes a “safe harbor” provision which specifies that a “service provider” is not liable for copyright infringement due to the actions of a third-party using the service provider’s facilities (17 USC 512; https://www.law.cornell.edu/uscode/text/17/512).

In general, the DMCA defines a “service provider” as “a provider of online services or network access.”
 
                A service provider will be protected from copyright infringement liability if ALL of the following are true:
 

1. The transmission of the material was initiated by a party other than the service provider;
2. The service provider does not make any selection as to the material transmitted;
3. The service provider does not select the recipients of the material;
4. The service provider does not modify the material;
5. In the event that the service provider receives a complaint about infringing material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing;
6. The service provider does not have actual knowledge that the material is infringing;
7. The service provider is not aware of facts or circumstances from which infringing activity is apparent;
8. The service provider does not receive a financial benefit directly attributable to the infringing activity;
9. The service provider designates an agent (the “Designated Agent”) to receive notifications of claimed infringement, such designation and certain other information (name, address, phone number, email address) to be made on its website and by providing same to the Copyright Office (more information as to how to do so can be found here); and
10. The service provider has adopted, implemented and informed its subscribers and account holders of a policy that provides for termination of accounts of repeat infringers.

While not legally required, most service providers publish a DMCA policy (which can be a section of the general Terms of Use) that explains what a copyright holder must do to provide the service provider with notice of infringement. Pursuant to the DMCA, the copyright holder must provide the service provider with a written communication (often called a “take down notice”) that includes the following:
 

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. 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;
3. 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;
4. 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;
5. 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; and
   
6. .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.

The service provider’s DMCA policy should include the name, address, phone number and email address of the service provider’s Designated Agent.  Upon receiving a valid take down notice (in form and content), the service provider should take the following actions:
 

1. Remove or disable the allegedly infringing content.
   
2. Notify the alleged infringer who then has the right to provide the service provider with a counter notification.
   
3. If a counter notification is received by the service provider, provide a copy of the counter notification to the party that provided the take down notice and inform such party that it will replace the removed material or cease disabling access to it in 10 business days.
   
4. Replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its Designated Agent first receives notice from the person who submitted the notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

For further information, please feel free to contact us.

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