The Digital Millennium Copyright Act
A Short Introduction to the DMCA for Adult Webmasters
By J. D. Obenberger, Attorney at Law
© MMII J. D. Obenberger, All Rights Reserved
What DMCA Is About
The Digital Millennium Copyright Act was signed into law by President Clinton on October 28, 1998, the result of many compromises among creative artists, publishers and government agencies, and in order to fulfill treaty obligations. It is vital, in fact critical, that every hosting company involved with adult content and every website permitting third party submissions or posts, develop a comprehensive understanding of its operation.
Most of those in the adult online world who encounter it will do so as 1) the victim of copyright infringement in search of some remedy or 2) as a host or webmaster who makes third party submissions available online, hearing from someone who claims that his or her or its content has been infringed.
In general, under the law of copyright, one is liable even for innocent infringement of the copyright belonging to another; that you have infringed a copyright in good faith, believing the material to reside in the public domain or that you had secured appropriate permission of the copyright holder to publish the material was not a whole defense to infringement; instead, if you could establish good-faith in the matter, it would go to the issue of damages, and presumably the punitive damages within the power of the court in cases of willful infringement would not be imposed against you; nevertheless, at least minimum statutory damages and "reasonable" attorney's fees would be included in the judgment, and these can amount to a significant sum in any judgment, despite any good faith mistake made by the infringer. The DMCA goes much further, and actually immunizes certain innocent infringers. It does nothing to help intentional infringers who knowingly publish material which belongs to others.
Part of the thinking here among the parties who reached the compromise that became the DMCA is that no one would invest substantial capital in creating a network of servers and high speed connections were they to become liable for each illegal act committed by their customers. Surely, the phone companies would have never prospered and grown were they liable for every defamation expressed by their customers during phone conversations; the ISP's and hosts wanted and obtained the same kind of protection, making the establishment of the Internet a safer investment proposition.
DMCA Immunity and How It Is Acquired in General
The DMCA establishes an immunity against monetary damages for innocent online publishers of content posted by others if and only if its procedures are complied with. Among the most requirements most commonly ignored or neglected by webmasters and hosts are the obligation to register an Agent for the purposes of receiving notifications under the DMCA (and to prominently post the Agent's information on the concerned site) and the obligation to establish a policy with respect to repeat infringers. That policy must reasonably provide for the termination of accounts of repeat infringers and it must be reasonably implemented. An Agent is officially designated by registration with the Registrar of Copyrights, by providing information about the sites for which he will act and his contact information, and payment of a fee. As mentioned above, the statute requires the prominent publication of his identity and contact information and some doubt exists that the immunities and protections of the Act will apply without compliance. The courts have not authoritatively articulated how the Agent's information is to be set out, but the procedure is safest when most conspicuous. This office is available to act as an Agent for this purpose, which assures the prompt receipt and notification of reports as they are received, regular coverage at all times, and some degree of privacy for the webmaster. The terms of service of each website which publishes third party material, from advertising sites to those which include third-party banners, to user-submitted posts, should establish and publish a policy that makes it clear how the site will deal with members who repeatedly infringe the copyright of others; putting the policy in a contract with customers puts them on notice, avoids the policy being inadvertently unpublished, and serves other benefits.
The DMCA provides no immunity for those service providers who receive a direct financial benefit attributable to the infringement itself.
In the absence of a designated Agent registered with the Copyright Office and in the absence of a published policy concerning repeat infringers, attorney's for the copyright holder should be expected to argue that the DMCA immunity is unavailable, and that damages, including attorney's fees, are available to their clients, even in the case of innocent infringement.
The DMCA does many, many things, from waiving the condition of registration of copyright prior to commencement of an infringement lawsuit for foreign-registered works and providing a criminal punishment for those who seek to avoid technical measures for the detection of copyright infringement, but the focus in this short piece is to familiarize the reader with the basic working of the Notice and Takedown procedures of the Act.
The DMCA covers and provides immunity for four classes of conduct by service providers; non-inclusion in one category does not affect a judgment about inclusion in another class, and even should the conduct not be included in any of them, the traditional copyright defenses, such as Fair Use, may still be available. Of particular interest to webmasters is the category of information stored on systems at the direction of users. This category of conduct will cover both normal hosting activity and the operations of sites containing user-submitted content.
The DMCA provides a procedure for the issuance of a subpoena for the purpose of discovering the identity of an infringer; in practice, these subpoenas are issued by the federal trial court having jurisdiction over the service provider who is your target.
The DMCA also expressly disclaims any duty on the part of a service provider to regularly monitor the information stored or transmitted by its customers, in this way contributing to a sense of privacy among internet users.
It is to be emphasized, however, that a service provider with actual guilty knowledge cannot avail itself of the immunities; if it becomes aware of the infringement (or facts from which the inference of infringement is apparent) and has the knowledge and power to act to terminate the infringement, it must do so or lose its protection; in practice, this means that a smart provider will react to even technically deficient DMCA Notices and even information provided by those who don't have standing to make an official DMCA Notice.
The Notice and Takedown Procedure
the notice and takedown procedure, a copyright owner submits a
notification under penalty of perjury, including a list of
specified elements, to the service provider’s designated
Failure to comply substantially with the statutory requirements means
that the notification will not be considered in determining the
requisite level of knowledge by the service provider. If, upon
a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)). The formalities of a proper Notice include information providing the name and location of the infringing material with particularity, the identity of the copyright owner, a statement that the author of the Notice is authorized to act in the name of the copyright owner, and a manually or digitally executed certification under the penalties provided for in law for perjury.
The exact requirements are expressed as follows:
- (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.
order to protect against the possibility of erroneous or
fraudulent notifications, certain safeguards are built into
section 512. Subsection (g)(1) gives the subscriber the
opportunity to respond to the notice and takedown by filing a
counter notification. In order to qualify for the protection
against liability for taking down material, the service
must promptly notify the subscriber that it has removed or
disabled access to the material. If the subscriber serves a counter
notification complying with statutory requirements, including
statement under penalty of perjury that the material was
or disabled through mistake or misidentification, then
unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification. Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)).
The conduct of the service provider must be "expeditious", but this term has not been well fleshed-out in the case law. It is wise to keep in mind that service providers may also be looking to the CDA which may also separately provide them some cover, arguably; seasoned service providers may also know that actual damages are likely to be small on account of a delay, and that it is expensive and time consuming to commence a suit in federal court, and may cynically take their good natured time in performing their "expeditious" duties.
In general, no Notice should be transmitted until or unless one has made a good forensic copy of the infringement in situ, a forensic copy meaning one that is tamper-proof and reliably dated, such as an Adobe Acrobat screen capture, preferably certified. This may be valuable evidence in a later infringement suit, including a subsequent suit based on repeat infringement. The exact filenames and original plain language names of the infringed files should be identified in any notice, together with their exact URL. This should be done with both videocaps and video files; frequently, they will reside on different hosts; it is my practice to prepare Notices addressed to each and every host storing both the video and still image infringements and to any pirate board; frequently, the whois information will list a nominee domain registrant, in which case a notice and demand for identity will go to the entity hiding the actual owner. A bit of exactitude will provide superior results; there is little harm of transmitting copies of the infringing pages along with each of the notices. Bad guys will pick their fights. Become the porcupine who is impossible to chew up and devour and you will probably get those superior results.
The DMCA Notice and Takedown procedures have been criticized as being too weak, and providing the service providers an unrestricted time (which they are alleged to abuse) in processing the Notices; moreover, there is spotty effectiveness in the utility of these procedures with respect to foreign service providers. Some webmasters, even those who have employed nonlawyers to process DMCA Notices, have stated that a lawyer's letterhead has provided results where nonlawyer Notices have failed. Inasmuch as we do not monitor what nonlawyers do, we draw no conclusion ourselves, except to observe that the use of nonlawyers to engage copyright infringers or those who enable them may amount to the unlicensed practice of law in some jurisdictions.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.