Basics of Navigating the Digital Millennium Copyright Act (“DMCA”)

Due to the proliferation of the Internet, social media platforms, and hosting websites, online service providers have often become unwitting hosts to materials that may potentially infringe on the copyrights of another. Likewise, original content creators have also increasingly found themselves to be targets of unjustified DMCA takedown requests. Sometimes these takedown requests are made for anti-competitive or harassing purposes by competitors of the website operator.

The Digital Millennium Copyright Act (DMCA) provides a safe harbor in certain circumstances for website operators, who host materials submitted by third parties that may infringe the copyrights of others. If the copyright owner provides a take down notice in compliance with the requirements of the DMCA and the website operator timely complies with its obligations under the DMCA, it may be shielded from liability for copyright infringement. The website operator can adopt and post a copyright policy to facilitate DMCA compliance. A sample copyright policy is below, which requests that a takedown notice including at least the following information:

· A detailed description of the copyrighted work you believe is being infringed upon;

· A description of the location of where the alleged infringing content appears;

· Your contact information (including name, address, telephone number, and email address);

· A statement that you have a good faith belief that the alleged infringing use is not authorized by you as the copyright owner, your agent, or by law;

· A statement affirming that, under penalty of perjury, the information in the notice is accurate and that you are indeed authorized to act on behalf of the copyright owner; and

· An original signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of the copyright as well as to submit the claim.

In addition to the policy, the website operator should register an agent with the United States Copyright Office.

While the above identifies a number of eCommerce and internet law issues affecting compliance with the DMCA, an in-depth analysis may be required. For example, the timeliness requirement for the takedown has been a hot litigation topic lately. Additionally, the DMCA applies to copyrights only, and does not currently provide a safe harbor for trademark infringement or patent infringement claims. These type of claims stemming from users of the website can be addressed in the Terms of Use or other website agreement between the website operator and its users.

For more information, you may want to contact a DMCA attorney with experience in DMCA compliance, copyright policies, and DMCA takedown notices.

Disclaimer – As with any discussion of legal topics, this article is intended to be educational only, and is not a substitute for legal advice, nor does it provide legal advice or form an attorney-client relationship with the reader. Please seek legal counsel before making any decisions. Also, please note that this article will likely not be updated, so the law and circumstances may have changed by the time you have read this article.

Darin M. Klemchuk is an intellectual property (IP) trial lawyer, with significant experience enforcing patent, trademark, copyright, and trade secret rights. He also focuses his practice on internet law and ecommerce.