In 1998, Congress passed a controversial new law known as the Digital Millennium Copyright Act (DMCA). Through the DMCA, Congress attempted to adapt U.S. copyright law to the challenges posed by digital technologies and the online environment. Although the DMCA as a whole extended the reach of copyright law and is generally regarded as favoring the interests of copyright owners, it also created provisions limiting the liability of certain online actors. Section 512 of the DMCA, 17 U.S.C. § 512, contains the DMCA's "safe-harbor" provisions for online service providers. These safe harbor provisions shield online service providers, like ISPs, hosting providers, search engines, and website operators, from copyright infringement claims made against them based on the conduct of their customers or users. To take advantage of the safe-harbor provisions, online service providers need to implement "notice-and-takedown" procedures that call for expeditious removal of content upon receipt of a formally valid takedown notice from a copyright owner. The DMCA's notice-and-takedown procedures could impact your online publishing work in a variety of ways:
If you operate a website that hosts user content, you should consider implementing these procedures and taking the administrative steps required to enjoy safe-harbor protection. You are not legally required to do so, but it may help you avoid copyright infringement liability. The three main things you need to do to take advantage of the safe-harbor provisions are (1) designate a copyright agent to receive takedown notices; (2) adopt and communicate to users an effective "copyright infringement policy"; and (3) properly comply with takedown notices when received. For details, on please see Protecting Yourself Against Copyright Claims Based on User Content.
Alternatively, your content may be the target of a DMCA takedown notice sent to someone else. For example, a copyright owner might send a takedown notice to your hosting provider complaining that you are posting copyright infringing material and asking the hosting provider to remove or disable access to it. Or, a copyright owner might send a takedown notice to YouTube or another video-hosting service demanding that a video you uploaded be taken down. (Our database is filled with examples of this -- Universal Music Group v. Malkin, Creation Science Evangelism v. Rational Response Squad, U.S. Air Force v. Wired/Threat Level, to name but a few). Less commonly, you might even post something in user comments on another blog or website that elicits a takedown notice. The DMCA gives online service providers, like your hosting service, YouTube, and other website operators, an incentive to take down your material when someone sends a notice complaining about it, but it also enables you to send a "counter-notifice" to get your material put back up. Sending a counter-notice may result in the copyright owner suing you, so you will want to be sure that you are not infringing the complaining party's copyright before sending a counter-notice. For details on what to do if your content is the target of a takedown notice, see Responding to a DMCA Takedown Notice Targeting Your Content.
Finally, if you discover that someone else is copying or using your work in a way that doesn't look like fair use, such as by reprinting entire articles or posts without your permission, then you may want to consider sending a takedown notice of your own. For details on this and other strategies for protecting your work online, see Protecting Your Copyrighted Work Online.
Section 512 of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, contains the DMCA's "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright infringing material from other online sources, so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing.
You are not legally required to comply with 17 U.S.C. § 512, but doing so may help you avoid copyright infringement liability. The sections below address those provisions of section 512 that may apply to you and discuss what you need to do in order to take advantage of the safe harbor provisions.
There are two safe-harbor provisions that potentially apply to your online publishing activities.
The first safe-harbor provision relates to materials posted to your blog or website at the direction of a user. This could include a file (e.g., a photograph, a film clip, an audio file) that a user posts to a comment section on your site or to a forum thread. (There are many other potential examples, the important thing is that the material is posted by another person, not you). This safe-harbor provision is found in 17 U.S.C. § 512(c), and it states that, as the administrator of a website or other service, you will not be held liable for money damages for infringing content posted "at the direction of a user," so long as you
The second safe-harbor provision relates to links you post to other online material located elsewhere. This safe-harbor provision is found in 17 U.S.C. § 512(d), and it states that an online service provider will not be held liable for money damages "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." (emphasis added). If you linked to material without knowing that it infringed copyright, the language of this section appears to relieve you of liability, so long as you
These safe harbor provisions could be valuable protections for you as a website operator, but in order to take advantage of them, you have to meet a few further administrative requirements.
Note: the existence of the safe-harbor provisions does not imply that you will be held liable for copyright infringement if you opt not to use the safe harbors. Rather, your liability will depend on the independent principles of direct and secondary infringement. For details, see the Chilling Effects FAQ about Copyright - What constitutes copyright infringement? and its FAQ about DMCA Safe Harbor Provisions - What is third-party liability, also known as secondary liability?
There are a few additional administrative steps that you need to take before you can enjoy the benefits of the safe-harbor provisions. These steps seem complicated at first, but in fact do not require a significant amount of effort or cost in order to comply with them. The steps are as follows.
1. Designate a Copyright Agent to Receive DMCA Takedown Notices
The U.S. Copyright Office maintains a list of designated agents to receive notices of claimed copyright infringement. This list enables copyright owners who believe that their work is being infringed to send complaints or "takedown notices" to internet service providers hosting or linking to the disputed material. You need to designate an agent, which can be you or someone else who agrees to do it, in order to take advantage of the DMCA safe-harbor provisions. To do this, you file an Interim Designation with the United States Copyright Office, along with an $80 filing fee.
2. Adopt and Communicate to Users a Copyright Infringement Policy.
In order to qualify for the safe harbor protections, you must also publish a statement on your site giving notice to your users of your DMCA agent's contact information and your policies regarding copyright infringement and the consequences of repeated infringing activity. The notice can be a part of the website's terms of use or some other notice displayed prominently on the site. For more on terms of use, see the Terms of Use and Website Privacy section for details. The statement should explain that you respond expeditiously to notices of claimed copyright infringement and terminate users or account holders who are "repeat infringers." If you have no subscribers or account holders, your policy may state "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user."
You may want to include a statement detailing the proper form for a notice of claimed infringement, which must include:
17 U.S.C. § 512(c)(3)(B) states that if a complaining party does not substantially comply with these requirements, its notice will not serve as "actual notice" for the purpose of Section 512. Your policy statement should also include a statement explaining the procedure for users of your site to make a counter-notification (discussed below).
3. Properly Comply with A Notice of Claimed Infringement When Received
You may from time to time receive a notice of claimed infringement from a copyright owner, alleging that content on your site infringes the holder's copyright. Such a notice must comply with the form outlined above. Once you verify that a copyright notification substantially meets these formal requirements, in order to qualify for the safe harbor, you are required to:
For information on the content of a proper counter-notice or if your content has been removed by your service provider as a result of a DMCA takedown notice, see Responding to a DMCA Takedown Notice Targeting Your Content.
The DMCA gets a great deal of attention in discussions of online speech, especially in technical circles. This attention is warranted, and vigorous debate about this controversial provision of the Copyright Act is necessary. But it is important to remember that other legal issues may also affect your online activities. The DMCA safe-harbor provisions apply only to claims of copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims alleging misappropriation of trade secrets, to name just a few of the possibilities. This means that you cannot insulate yourself from liability on one of these other claims simply by "expeditiously removing" the disputed content. In many situations, you may be protected by section 230 of the Communications Decency Act for publishing the statements of your users. See the Primer on Immunity -- and Liability -- For Third-Party Content under Section 230 of the Communications Decency Act for details on this provision.
Website and blog operators get cease-and-desist letters based on non-copyright claims with some frequency. You should not assume that every threatening letter you receive is a DMCA takedown notice -- you need to look at the precise allegations and legal claims made in the letter and evaluate your next steps from there. It is not sufficient, for example, to conclude that a cease-and-desist letter relating to defamation or trade secrets law is somehow "defective" because it has not met the formal requirements for a notice of claimed copyright infringement under section 512. This will only muddle your thinking and could potentially exacerbate a delicate situation. For more on what to do if you receive a cease-and-desist letter, consult the Responding to Correspondence Threatening Legal Action section. For more on the confusion between other kinds of cease-and-desist letters and notices of claimed infringement, see our blog post, Not Every Cease-and-Desist Letter is a DMCA Takedown Notice.
This confusion may also work in reverse. There may be times when you receive a DMCA takedown notice for material that is technically not eligible for safe-harbor treatment, such as material you posted yourself. If it satisfies the complaining person that you take the material down, and you have no serious objection, you might want to do so.
It is becoming more and more common to embed videos from other online sources into an article or post in order to illustrate a point or get a laugh. This raises the question of whether you could be held liable for embedding an infringing video on your website or blog. The technical point to keep in mind is that an embedded video is just a link. So, there is no copy of the video being stored on your server, just the HTML code for the embed. Therefore, you may be able to claim the protection of the safe harbor found in 17 U.S.C. § 512(d), discussed above. For details see our blog post, Embedded Video and Copyright Infringement.
If your hosting service or other online service provider receives a DMCA takedown notice regarding your content, it ordinarily will respond by removing the complained-of material, and it will do this automatically without making any judgment about whether your content actually is infringing. However, the DMCA notice-and-takedown procedures provide you with protection from a wrongful claim of copyright infringement. The DMCA requires your service provider to notify you promptly when it removes any of your content because of a takedown notice, and you have the right to submit a counter-notice asking that the material be put back up. There is no specific time limit for submitting a counter-notice, but you should not delay unreasonably in doing so. If you send a counter-notice, your online service provider is required to replace the disputed content unless the complaining party sues you within fourteen business days of your sending the counter-notice. (Your service provider may replace the disputed material after ten business days if the complaining party has not filed a lawsuit, but it is required to replace it within fourteen business days.)
Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party's copyright. There are two reasons for you to consider this carefully. First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly because it might come back to haunt you. Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner's work in a lawsuit, you should think twice about firing back a counter-notice. That said, copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.
Some common bases for sending a counter-notice are that the complaining party does not own copyright in the work in question -- either because it is not covered by copyright or because someone else owns the copyright to it -- and that your use of the copyrighted work is a fair use. You should be extra careful when relying on a claim of fair use to justify sending a counter-notice. Determining whether something is a fair use often requires a complex, fact-specific analysis, and even lawyers have difficulty predicting what a court will say about fair use ahead of time. If you believe fair use might protect you, you should examine the four fair use factors carefully and consider contacting an intellectual property attorney.
To work effectively, your counter-notice must contain the following items:
17 U.S.C. § 512(g)(3). Chilling Effects has a great counter-notification generator to help you draft a valid counter-notice.
If you are not a U.S. resident, you must consent to the jurisdiction of a U.S. court in your counter-notice. If you never come to the United States and have no assets there, then this may not be a significant concession because a plaintiff would not be able to enforce a judgment against you in the U.S. Nevertheless, a plaintiff might be able to convince a court in your country to enforce a foreign (U.S.) judgment, and this proceeding might not give you the opportunity to make out your case. In any event, sending a counter-notice makes non-U.S. residents give up a powerful argument they would otherwise have -- namely, that a U.S. court does not have the authority to render a judgment against them. For these reasons, non-U.S. residents may not want to send a counter-notice unless they are willing to fight a copyright infringement claim in the U.S.
Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. See 17 U.S.C. § 512(f). So, if you claim in a counter-notice that your content does not infringe the complaining party's copyrighted work while knowing this to be false, then the copyright owner can win damages from you, including court costs and attorneys' fees stemming from your wrongful counter-notice. Note, however, that this provision also works against a person or company sending a wrongful takedown notice. If someone claims in a takedown notice that you are infringing their copyrighted material while knowing this to be false, then you can win damages from them in a lawsuit. In recent years, the targets of wrongful takedowns have fought back and won damages and favorable settlements from individuals and companies sending bogus takedown notices. For instance, in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit. For another example, see Crook v. 10 Zen Monkeys in our legal threats database. Someone who has sent a baseless takedown notice about your content may be more inclined to back off if you remind him or her about section 512(f) of the DMCA, in addition to sending a counter-notice.
Often, the best strategy for dealing with speech you do not like is through more speech, rather than resorting to threats of legal action. In some situations, however, more speech may do little good, such as when someone copies your work and publishes it on another website without permission. For instance, a recent post on MediaShift's Idea Lab blog asks "How Do We Deal With Stolen Content?". In that post, Gail Robinson, the editor-in-chief of Gotham Gazette, relates how the Gazette's technical director has found many sites reprinting the full text of Gazette articles without permission, often using them with little or no attribution and sometimes even making the articles look like original material. This post prompted us to think about strategies for citizen media creators to protect their online work from copyright infringement. The law provides you with several tools for protecting your work, including sending DMCA takedown notices to online service providers that host websites or blogs that copy your work. Despite the potential usefulness of these tools, it is important to use them judiciously to protect your rights without unduly chilling the speech of others.
We cover the basics of copyright law elsewhere in this guide -- see especially What Copyright Covers and Using the Works of Others -- but suffice it to say that copyright protects your articles, posts, photographs, videos, and other works of creative expression from the time that they are fixed in a tangible medium of expression (e.g., from the time you first type your words into your computer or save a photograph or video as a digital file). At the very least, other websites that post your articles or other work without permission are infringing your rights to reproduce (i.e., the right to make a copy) and distribute them. Before taking any action, however, you should consider carefully whether the other site's use of your work could be a fair use. Wholesale copying of your work will usually not be fair use, but selective quoting and paraphrasing may be permissible, especially if it is for purposes of commenting on or criticizing your work. For details, see the Fair Use section in this guide. You should also consider whether you have granted a license to the public to reproduce and distribute the work, such as through a Creative Commons license posted on your site. For details on licensing, see the Copyright Licenses and Transfers section and its subsections.
If you determine that someone is infringing your copyrighted work and that it likely is not a fair use, the most straightforward route is to look for contact information on the offending site or blog and write the person an email stating that the site or blog is infringing your work and asking for it to be taken down. Your email need not be long and complicated; you just need to state the basics facts (i.e., the website is using your copyrighted work without permission) and what you want done about it (i.e., take it down). The Chilling Effects Clearinghouse has thousands of copyright cease-and-desist letters in its database that you can use as models.
If contacting the infringing website operator does not work, you might have better luck with the company that hosts the website or blog. You can use a tool like Who is Hosting This? to help determine the identity of the host. A hosting service or other online service provider has an incentive to comply with a takedown notice because the DMCA safe-harbor provisions give it a defense to copyright liability if, upon receiving such a notice, it expeditiously removes infringing material posted at the direction of its clients. For details, see Protecting Yourself Against Copyright Claims Based on User Content. In order for a takedown notice to be effective, you must send it to the registered copyright agent of the host or other online service provider you want to contact. The U.S. Copyright Office maintains a directory of designated agents, and the provider's website will often list the designated agent in its "Copyright Infringement Policy," "DMCA Policy," or a like posting. In addition, a takedown notice must contain the following items in order to be valid:
17 U.S.C. § 512(c)(3)(B). If your takedown notice meets these formal requirements, then the host or other online service provider has to expeditiously remove the complained-of material if it wants to maintain its immunity from copyright liability. After it does so, however, the person whose work has been taken down may send a counter-notice to the service provider. If this happens, the service provider will notify you about the counter-notice. From this point, you have fourteen business days to file a lawsuit and notify the service provider that you have done so, or else the service provider is obligated to put the disputed material back up. See 17 U.S.C. § 512(g)(2).
Note: If both the website operator and the hosting service are outside the United States, then you may not have luck via these routes.
Another strategy you can adopt to help protect your work online is to register your website content with the U.S. Copyright Office. Registration is most valuable, however, only if you would be willing to go through with filing a lawsuit. The good thing about registration is that, if you sue someone for infringement and win, then the court can award you statutory damages (damages that are set by statute, so you don't have to prove how you were actually injured, which can be hard) and attorneys' fees. In a sense, registering your work puts some teeth behind the letter-writing strategies discussed above. If you are interested in this route, please consult the Copyright Registration and Notice section of this guide and Sarah Bird's excellent posts about registering website content, Sample Forms and Strategies for Registering Your Online Content and Why You Should Go to the Trouble to Register Your Copyright When Everyone Tells You That Your Work Is Protected Automatically. Again, let me emphasize that registration really only helps if you are willing to sue, which many are not willing to do.