THE NOTICE AND TAKE

DOWN PROVISIONS OF
THE DMCA
IVAN HOFFMAN, B.A.,
J.D.

Under the provisions of the Digital Millennium Copyright Act (DMCA),

copyright owners have an opportunity to leverage their rights to protect
their content by notifying a service provider about conduct which is alleged
to be an infringement and making demand that such content be removed.
Having access to this remedy greatly increases the likelihood of
effectiveness of remedies since seeking recourse only against the actual
infringer is often ineffective.
However, as you will see, the right is accompanied by some restrictive
requirements.
Exclusion Of Liability of Service Providers
Having stated the basis for liability above, the general rule is that,
except under the circumstances set forth in the statute and discussed
below, service providers who qualify are exempt from liability for copyright
infringement. This exemption extends to 4 defined categories of services
provided:
 Transitory communications (meaning that the provider merely
transmits, routs or provides connections for material coming through
a system);
 System caching (meaning the temporary storage of such material);
 Storage of materials at the direction of a user (hosting sites, running
mailing lists, news groups, chat and the like); and
 Information location tools (search engine facilities).
If a service provider qualifies, then the statute provides for a complete
bar to monetary damages and a limited bar to injunctive relief against the
provider. But in order to qualify, the provider must have adopted and
implement a policy of terminating the accounts of subscribers who are
“repeat infringers” and the provider must not interfere with “standard
technical measures” designed to protect copyrighted works.
The requirements for obtaining the exclusion vary somewhat based on
the nature of the services provided.
Under the “transitory communications” category above, the provider
is exempt if the provider merely acts as a conduit for the data submitted by
another and covers the acts of transmitting, routing or providing
connections. What is important here is that the data must be transmitted
by the provider by an automatic, technical process without the selection or
editing of that material or data. Thus if a provider acts more like a
publisher in selecting the material, the exemption provided under this
category may not be available.
Under the “system caching” category, the exemption is provided if the
material that is cached is not modified and that the provider comply with
rules about refreshing the material and providing limited access to that
material. The rules, while technical in nature, are in general again about
keeping the role of the provider to merely a non-active storage facility
without other involvement in the data. One difference in this category is
that the provider must remove or block access to any allegedly infringing
material from the cache once it has been notified that the same material
has been removed or blocked at the originating site.
Under the “storage” exemption, the provider may be exempt if it does
not have knowledge of an infringement (or is not aware of facts or
circumstances from which infringing activity is apparent) and does not have
the right and ability to control the infringing activity or if it does have that
right, it does not receive a financial benefit directly attributable to that
infringing activity. Further, as above, once it receives a notice of
infringement (discussed below), it must expeditiously take down or block
access to the material. Of great importance, however, is that in order to
avail itself of this exemption as a host, the provider must have filed with
the copyright office a form designating an agent to receive notifications of
the claimed infringement.
Under the information location tools exemption, in order to qualify the
provider must again lack the requisite knowledge or ability to control the
material and must take it down upon notification and comply with the
designation of agent requirements, much as with the previous limitation.
The Notice Provisions
When a copyright proprietor discovers allegedly infringing material on
a provider’s service, it has the right to send a notice to the provider
demanding the removal or blocking of that material and if the notice is
proper and the provider promptly complies, the provider remains exempt
from liability to the copyright owner. In addition, the provider is then also
exempt from liability to the person who posted the material that is then
taken down or blocked, subject to the rules discussed below.
But the notice is very specific in what it requires. Here is what the
statute says:
To be effective under this subsection, a notification of claimed
infringement must be a written communication provided to the designated
agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
In the event the notice does not comply with the above, then the
ineffective notice is not considered as providing the requisite knowledge to
the provider to make the provider liable unless the notice “substantially
complies” with the requirements and the provider contacts the person
sending the notice.
Since these notices can be subject to being abused, the statutes
provides rights in the subscriber who posted the material to respond to the
notice by filing a counter notice. In order to avail itself of protection
against liability to the subscriber for taking down or blocking the material,
the provider must have promptly notified the subscriber that it has
removed or blocked or disabled the material and if the subscriber then files
the above counter notice under penalty of perjury that complies with the
statutory requirements, then the provider must put back the material
within 10-14 business days unless the copyright owner files an action in
court against the subscriber.
There are some variations on these rules with regard to non-profit,
educational institutions.
In Recording Industry Association of America, Inc. vs. Verizon Internet
Services, Inc., the Circuit Court of Appeals for the District of Columbia ruled
that the supena power under the DMCA does not authorize the issuance of
supenas as to those service providers covered by “transitory
communications” section of the DMCA but only to the 3 other categories of
such service providers.
Conclusion
In regard to the issues in this article, the DMCA tries to seek a balance
between the rights of the copyright owner and that of a poster, all the
while seeking to not interfere with the free flow of ideas or commerce.
Some would see it differently, I am sure. The “answer” of course depends
on what seat you occupy.
© 2001 Ivan Hoffman
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This article is not legal advice and is not intended as legal advice. This
article is intended to provide only general, non-specific legal information.
This article is not intended to cover all the issues related to the topic
discussed. The specific facts that apply to your matter may make the
outcome different than would be anticipated by you. This article is based
on United States law. You should consult with an attorney familiar with the
issues and the laws of your country. This article does not create any
attorney client relationship.
 ****************
No portion of this article may be copied, retransmitted, reposted,
duplicated or otherwise used without the express written approval of the
author.
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