Best Practices for DMCA Notice-and-Takedown Processes

Generally, the Digital Millennium Copyright Act (DMCA) exempts online service providers from liability for copyright infringement by its users, so long as they meet certain conditions.

Among the most notable, service providers must “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing” upon receiving notice of infringing material being posted on their networks. The notification process has become commonly known as “DMCA notice-and-takedown process.”

The DMCA notice-and-takedown process requires a notification of claimed copyright infringement to include certain information, such as the complaining party’s contact information and identification of the infringing material. However, it does not establish a specific procedure for the notification and removal of infringing material. As a result, service providers have adopted their own policies and procedures.

To help ensure that DMCA notice-and-takedown mechanisms are easy to find and understand, the U.S. Department of Commerce recently published several DCMA best practices. Below are some brief highlights:

DCMA Best Practices for Service Providers

• Make DMCA Notice-and-Takedown counter mechanisms easy to find and understand by ensuring that they appear readily in search engine results, are linked from web page headers and footers, and/or described in Terms of Service or Help/Contact pages;
• Provide a clear, “plain English” explanation of who can submit a DMCA notice and counter-notice; what information should be submitted to comply with DMCA requirements; and what additional information, if submitted, can facilitate the removal of alleged infringing content;
• Allow multiple URLs to be submitted online at one time, whether via email or a website form, and offer, where appropriate, alternate methods of submitting notices for large notice senders, such as scalable, machine-readable processes.
• Provide confirmation of receipt of a notice or counter-notice that includes a method to identify the notice or counter-notice in further communications, such as a copy of the completed web form, or an email confirming that the content has been acted upon; and
• Make reasonable efforts, following withdrawal of the notification or receipt of a valid counter-notification, to reinstate in a timely fashion material removed pursuant to a DMCA notice.

DCMA Best Practices for Notice Senders

• Ensure all submissions are made in good faith;
• Prior to submitting a take down notice, take reasonable measures to determine the online location at which the material or a link to the material resides and to appropriately consider whether use of the material identified in the notice in the manner complained of is not authorized by the copyright owner, its agent or the law;
• When using automated tools, conduct a human review of the site to which notices will be directed to ascertain whether the site is particularly likely or unlikely to be hosting or linking to infringing material.
• Periodically perform spot checks to evaluate whether the search parameters are returning the expected results, and adjust the search parameters if needed are not as expected

The U.S. Department of Commerce also highlights several “bad” practices, such as the use of stigmatizing or intimidating language in connection with any DMCA notice mechanism with the intent to chill submission of legitimate notices. For notice senders, the guidance warns against using the DMCA Notice-and-Takedown process to harass or retaliate against others, such as using a notice to temporarily silencing a critic.

Do you have any feedback, thoughts, reactions or comments concerning this topic? Feel free to leave a comment below for Fernando M. Pinguelo and follow the twitter accounts @CyberPinguelo and @eWHW_Blog for timely comments on related issues. If you have any questions about this post or would like assistance with your legal needs, please contact me or the Scarinci Hollenbeck attorney with whom you work. To learn more about data privacy and security, visit eWhiteHouse Watch – Where Technology, Politics, and Privacy Collide (http://ewhwblog.com).