Copyright Infringement on the Web – DMCA Takedown Notices

Congress created a procedure that content owners can use to ask websites to remove content protected by their copyright. The mechanism creates an incentive for webhosts, internet services providers, and search engines to remove (or at least investigate removing) material that may violate the content owner’s copyright. It is called a DMCA Takedown Notice.

Before this mechanism, content hosts could be liable for copyright infringement, even if they had not uploaded the offending content themselves. For instance, Google could be liable for copyright infringement if someone posted a Beastie Boys music video on YouTube. This provision now says that Google, if it receives proper notice of the music video, can avoid liability if takes steps to investigate the matter and remove the offending content. The idea is that by fostering communication between the content owner and the content host, copyright rights can be maintained and protected without litigation.

There a number of procedures that must follow. First, the protection is only available to the web host if it designates an agent to receive Takedown Notices and lists that agent with the Copyright Office. This allows a content owner to look up the name and address of the agent fairly easy, so that he or she can send the Notice without difficulty.

The Notice itself must conform to a number of requirements. Most importantly, it must identify the protected work, and the manner or location in which it is being infringed on the offending site. It must include a signature and a statement made in good faith that the content is being used without permission. Tied up in this is the requirement that there be copyright infringement (or at least alleged infringement). Merely copying a few words from one site to another is probably not copyright infringement. Using the overall design of a website for another site is probably not copyright infringement. Thus, there are some instances where, although the content owner may feel wronged, the actions don’t necessarily amount to infringement that can support a DMCA Takedown Notice. However, there are many instances where a serious argument can be made that the offending site is infringing, and in those circumstances a Takedown Notice is appropriate.

It is best to consult with an attorney before sending a Takedown Notice. A Notice that is spurious or lacks support can be a big mistake – the sender can be liable for damages, which may include the costs incurred by the webhost or search company in hiring an attorney to investigate the Notice.