by Howie Cockrill
In Part 1 and Part 2 of this article, I outlined the 4 types of Service Providers qualifying for protection under the DMCA and explained the 3 types of copyright infringement - strict, contributory and vicarious liability.
In Part 3, I provide an explanation of the DMCA's Section 512 - more commonly referred to as the "notice and take down" or "safe harbor" provisions.
DMCA SECTION 512
An easy (yet over-simplified) way to think of the DMCA is that it consists of 2 main parts:
1. Section 512 – the “Notice and Takedown” provisions
2. Section 1201 – the “Anti-Circumvention” provisions
In this article, I am focusing on Section 512.
Section 512, also referred to as the “Notice and Take Down” section of the DMCA, provides that certain qualifying Online Service Providers (OSPs) are not automatically strictly liable for copyright infringement initiated by their users.
Qualifying OSPs may be eligible for a “safe harbor,” which means they can be exempted from contributory liability if they follow certain procedures.
In practice, this means that to avoid liability – an OSP must abide by certain requirements to take down allegedly infringing material once it has received a notice from a copyright owner.
So which OSPs qualify for the safe harbor?
- Conduits: those that just provide connectivity (think ISPs)
- Cachers: those that temporarily cache web pages
- Hosters: those that allow their users to upload material
- Linkers: those that provide links (think search engines)
What is the “notice and takedown” procedure?
There are 3 prerequisites for OSPs to qualify for the safe harbor. OSPs must:
- have and implement a policy of terminating repeat infringers
- accommodate and not interfere with widely-adopted, non-discriminatory technical measures used to protect copyrighted content.
- designate an agent to receive notifications of claimed infringement, register the agent with the Copyright Office and list the agent’s contact information on the website.
If a qualifying OSP meets these prereqs – it may be protected from liability for its own infringing actions and those of its users.
When an OSP receives notice from a content owner of an alleged copyright infringement, the OSP must abide by the following procedure (as described on the EFF website).
- Verify the Notice
- Promptly take down the allegedly infringing material.
- Notify the alleged infringer of the take down.
- If counter notice is sent to OSP by alleged infringer – notify complaining copyright owner of counter notice
- Restore allegedly infringing material unless the copyright owner files an infringement action.
VERIFY THE NOTICE
Notices of infringing material sent by content owners to OSPs must comply with DMCA notice requirements.
Here are the DMCA requirements for proper notice:
- signature (physical or electronic) of copyright owner or their authorized representative.
- identification of the infringed work
- identification of the allegedly infringing work
- contact information for copyright owner or their representative
- sworn statement that copyright owner or their representative has a good faith belief that the use of the infringed work was not authorized.
- sworn statement that the information in the notice is accurate and, if the representative is signing, that the representative is authorized to do so by the copyright owner.
If a “take down” notice does not meet these requirements, it is not valid under the DMCA.
It should also be noted here that under Section 512, the complaining copyright owner can also have the OSP served with a subpoena for the alleged infringer’s identity and contact information, to the extent the OSP has that information.
In order for a court to grant such a subpoena, the OSP must present to the court a copy of the valid “take down” notice, a subpoena in proper form, and a declaration that the complaining copyright owner will use the subpoenaed information to protect their rights under the DMCA.
The OSP may receive such a subpoena either at the same time as or after receiving the take down notice.
TAKE DOWN INFRINGING WORK
Once the Online Service Provider receives a valid “take down” notice, the OSP must take down the allegedly infringing work in order to qualify for the Section 512 safe harbor.
NOTIFY ALLEGED INFRINGER OF TAKE DOWN
After the infringing work has been taken down, the OSP must reasonably attempt to promptly notify the alleged infringer of the take down.
The alleged infringer may believe that the take down was unjustified. This could be for any number of reasons.
For instance, the alleged infringer may believe he or she had permission to use the work or that he or she is the owner of the work being infringed. Alternatively, he or she may believe that their use qualifies as a “fair use.”
If this is the case, the alleged infringer may send a “counter notice” to the OSP.
Here are the DMCA requirements for a valid counter notice:
- signature (physical or electronic) of the alleged infringer.
- identification of taken down work
- identification of location of work before it was taken down
- sworn statement that alleged infringer has a good faith belief that the work was taken down due to a mistake or misidentification
- sworn statement that alleged infringer consents to jurisdiction in the federal court for the district where their address is.
- alleged infringer’s contact information
NOTIFY COMPLAINING COPYRIGHT OWNER OF COUNTER NOTICE
If an OSP receives a counter notice from an alleged infringer, the OSP’s first step is to send notice to the complaining copyright owner, including a copy of the counter notice and a statement that the OSP will restore the allegedly infringing work to the OSP’s site in 10 to 14 business days.
RESTORE THE TAKEN DOWN WORK
If an OSP receives a counter notice, the OSP must restore the allegedly infringing work on the website no less than 10 and no more than 14 days later.
In that 10-14 day period, the complaining copyright owner may decide to file an infringement suit against the alleged infringer.
If that happens, the complaining copyright owner will send a notice to the OSP that a lawsuit has been filed. The OSP is then prohibited from restoring the alleged material on the website.
If the Online Service Provider does not qualify for the safe harbor, this does not mean that it will automatically be held liable.
It simply means that the “notice and takedown” provisions of Section 512 do not apply and that the court ruling on the issue will look to other court decisions in making its holding.
COMPLAINTS ABOUT THE DMCA “SAFE HARBOR” STATUTE
Many people complain that the DMCA Section 512 “safe harbor” provisions have been misused by copyright owners and their representatives.
Probably the most common complaint has to do with the 10-14 day period during which allegedly infringing material must stay taken down after an OSP’s receipt of a take down notice from a copyright owner.
On the internet – stories, memes, viral videos and myriad other content bubble to the surface and are gone again in the blink of an eye.
Detractors of the “safe harbor” and how it is used in practice say that requiring material be removed from an OSP’s site simply because of a copyright owner’s “good faith belief” that the use of the material is unauthorized essentially amounts to short-term censorship.
In addition to getting the material automatically taken down for 10-14 days, by using a subpoena the copyright owner can also get access to the alleged infringer’s identity and contact information from the OSP.
All of this without any substantive evidence of infringement and without filing an infringement suit.
“SAFE HARBOR” AND VICARIOUS LIABILITY
The language in the DMCA Section 512 is fuzzy with regard to whether the safe harbor provisions protect OSP’s from vicarious liability.
The portion of 512 dealing with Hosters (the only one of the four categories who could be exposed to vicarious liability) states that Hosters will not be liable if:
- they do not have knowledge of the infringement
- they do not receive direct financial benefit from the infringement
This is something of a hybrid of contributory and vicarious liability, combining the “knowledge” requirement from contributory infringement and the “direct financial benefit” requirement from vicarious infringement.
However, in application the trend appears to be that 512 protects qualifying OSP’s from contributory infringement but does not necessarily protect them from vicarious infringement.
Anyone operating an internet site or service, as well as anyone posting content to such a service, should be not just aware of, but knowledgeable about, liability for online copyright infringement.
When infringement accusations start flying, the stakes can be high - and understanding your rights and your obligations ahead of time may help you prevent problems before they arise.