Web Design and the DMCA: Giving and Getting Take Down Notices
Published on November 5, 2007
Does your client ask you to stand behind the content you create for their site? Most clients worth their salt will, and successful freelance and web design firms know enough about DMCA take-down notices to do so comfortably. Do you?
What is the DMCA?
The Digital Millennium Copyright Act (the DMCA) is a federal statute that may stop a copyright infringement claim in the United States in its tracks if what you do fits within its definition of a “service provider.” I say “may” because the DMCA statute is very specific, and there are quite a few hoops to jump through. Simply put, the DMCA may help reduce the risk of a lawsuit for copyright infringement, but it will not stop a lawsuit from being filed in every case. What you may need to realize, however, is that the DMCA’s protections do not apply to everyone, and it’s better to find this out sooner than later.
(NB: The contents of this article are solely concerned with US copyright law. If a non-US entity writes to you about content posted outside of the US, your liability arises from laws outside of the US, and the DMCA will provide absolutely no insulation unless a claim arises under the US Copyright Act.)
The DMCA provides a mechanism for an owner of copyrightable material to send a demand—a take-down notice—to a service provider, demanding removal of copyrightable material that is uploaded or displayed without authorization. If the service provider accused of hosting or displaying the material follows the take-down requirements, it can obtain insulation from a claim for money (called a claim for monetary damages), or a claim for injunctive relief.
Does it affect me?
If you are a service provider, including a web host, content publisher, or transmitter of content, the protections of the DMCA may apply to you. The DMCA protections do not apply if you do not fall within the service provider definition.
If you are a creator of online content—or any copyrightable material—you may be required to respond to a DMCA take-down notice.
What type of content does the DMCA regulate? The DMCA uses the term material to mean any copyrightable work including written text (also referred to as literary works), visual works, graphic works, or musical work protectable under the Copyright Act.
Does the DMCA cover design as well as content? The DMCA covers copyrightable works, period.
Is software code material? Yes, if it is displayed on an online service. Even code that passes between two computers is a literary work and protectable under the Copyright Act. Thus, code is material under the DMCA.
Sending or receiving a take-down notice
OK, so you’ve got online content. Or you’ve seen your content online on a site that you did not authorize or license. If you find yourself in the position of sending or receiving a take-down notice, this informal checklist will help you get it right the first time:
Follow the rules
If you get a take-down notice from your web host, client, or content publisher, you should understand the implications of taking down the content. You should also know that the DMCA (17 USC 512) does not provide liability insulation to the mere content creator or publisher. The insulation is for your web host, and the reason you should respond to their take-down request is 1) so your web host or client doesn’t terminate your contract; and 2) to avoid any further claims of damages by the party that alleges infringement.
If you put the content up—on your own web site, for example—the DMCA is not going to work for you if you receive a take-down notice, but it will dictate how you respond. So take note.
If you wonder whether you might qualify under the first prong of the DMCA for liability insulation, is the transmission of the material initiated by or at the direction of a person other than you? If the answer is yes, then you might fit into the definition of a protected service provider. (Please call your lawyer to find out why I say you might fit into the definition and have some liability insulation. It is not a complete immunity.) If you qualify and follow the rules, you—a service provider—are not liable for money damages or injunctive relief for copyright infringement.
Get your notice done right
So you don’t fit the service provider definition, but your client has sent a take-down notice to you. Now what? Is the take-down notice complete and effective? If it is not, that does not relieve you from any liability, but it may slow down the complaining party and may also slow down your web host form turning you off or from taking down your content.
To send an effective notice, the injured party must put it in writing. An irate phone call won’t work. The notice must meet the following requirements:
- Be signed by an authorized person (either the owner of an exclusive right that is allegedly infringed, or their agent).
- Identify what was infringed. Specifically, it must list or describe the copyrighted work claiming 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.
- Identify the material that is infringing—with “reasonably sufficient” detail—to permit the service provider to locate the material.
- Include the complaining party’s complete contact information.
Include the following statements:
- “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
- “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.”
So, if the notice does not meet these requirements, you will be in a position to write to your web host or client—or the party that sent you the notice—to request a corrected notice. You should still begin to think about how you will defend against an alleged claim for infringement because remember, the DMCA does not insulate non-service providers.
If you’re a service provider seeking insulation under DMCA you must designate an agent with the US Copyright Office. If you’re trying to track down the copyright agent, look at the Copyright Office’s DMCA agent listing. If your alleged infringer does not have an agent, this could be a mark against them.
Take reasonable steps to contact complainer with inadequate notice. If a notice comes in that substantially complies, contact the complainer promptly to maintain insulation.
Take down the content in accordance with 512(g). (Remember that this article is general info only and may not apply to your situation. Nothing substitutes for talking to a lawyer about your factually specific situation). If you are a web designer, you should carefully:
- consider taking down your content or disabling access;
- preparing a counter-notice (see below) within ten days of receipt of the original take-down notice to refute its allegations and demand that your web host replace the content;
- monitor the original posting to see if your web host did in fact replace the removed material and cease disabling in not less than ten and not more than fourteen business days after receipt of counter notice, unless the content creator has received notice from complainant that an action has been filed.
What counter-notice is needed?
Your web host sends you a take-down notice they received from a third party. Now what? Without delay, send a counter-notice to the web host’s designated agent that:
- has your signature;
- states that the content in question has been removed and disabled, along with the location where it was;
- states, “the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”;
- includes your complete contact info and a statement that “the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection©(1)(C) or an agent of such person.”
If your content is taken down and you receive a take-down order, your recourse against your web host is limited.
If you provide content for others and are not a mere passive conduit, a web host or publisher, the DMCA may not provide protection for you from a lawsuit but it does provide a mechanism you must follow. Pay close attention to where your content is posted, hosted, and published. Look for the copyright agent registered with the Copyright Office. Follow the take-down notice specifics precisely, and do not let up until you get the proper response from your take-down notice.
The DMCA may be a tool to protect the web host and content publisher, but its effect may be to put a huge burden onto the shoulders of the content owner. If you are the content owner, knowledge of the DMCA will be an important tool in your arsenal.
Gregory Rutchik is the founding lawyer of the arts and technology law group(R) with offices in San Francisco and Santa Monica, CA. Gregory litigates for business owners of branded, technology based and entertainment businesses who have disputes over money, intellectual property, customers and the marketplace. He can be reached at Gregory~at~rutchik.com or 415-399-9440. Rutchik is currently co-chair of the American Bar Associations' Copyright section subcommittee on Pictorial, Sculptural, Visual and Graphic Acts and editor of American Trial Lawyer's Business Torts newsletter.