He did what many others in the modern, social-media driven world do, he created a Facebook group to help generate some buzz, collecting information and works from various fan sites and official releases to share with others.

However, a marketing group working for Overture films, Mammoth Advertising, filed a DMCA takedown notice against the group, claiming that it was violating their copyright by posting “video clips, stills, photos and movie posters owned by Overture that have not been approved for upload to Facebook.” According to the complaint, the group had ripped content from various exclusive promotions and from the official Facebook group and uploaded them to their group.

Facebook complied and removed a great deal of content from the group. Yung responded on September 10 with a DMCA counter-notice, roughly the same day the notice was filed.

However, as of October 8, the content was still offline. Though the DMCA requires the host to wait 10 working days before restoring the content to allow the filer time to file suit or seek out a court order, nearly double the allotted time had passed. It wasn’t until media attention, including articles on Techdirt and Crunchgear, did the content get restored.

But by then the issue was largely moot. Yung had already closed his group and the film, despite getting good reviews, had largely bombed in the U.S. All that’s left now is an interesting case study DMCA takedowns, counternotices and fan communities.

Problems With the Notice

It is impossible for me to say with any certainty how valid or invalid the notice was. It involved many items in the group with a variety of uses and potential standings. Therefore, I’m going to largely avoid the issue regarding the validity of the notice and the counternotice.

However, to be clear, Yung did admit that it is “highly possible” that at least some of the content was exclusive and leaked to the Web without authorization. He went on to say that “It is completely legitimate for the rightful owner to take them down.”

Still, the use of the DMCA here was clearly misguided. Yung said he would have gladly worked with the marketing firm or Overture films to keep exclusive content off their site. As a fan of the film trying to promote it, simply racing to takedown infringing works via the DMCA was a pretty bad approach and does nothing to help the movie make money.

To make matters worse, according to Yung, the takedown was inconsistent. The difference between what was and was not taken down was almost cryptic. For example, this image:

The first image is the official poster, the second is a blank version edited by Yung and the third is a parody poster he created for the group. Strangely, the first two were allowed to stay while the third was removed, despite it likely having the strongest fair use arguments.

This inconsistency took place through the entire takedown with some marketing materials being removed, such as posters and official trailers, several parody images where they took stills from one of the two movies and wrote on them and at least one comparison image designed to show differences between the trailer for the U.S. and the Swedish movie the red band and the green band trailer for the film (Corrected by Yung).

In short, whether the notice or counternotice was valid for all the works there were at least some takedowns that were questionable and the decision to go this route against a fan community was foolish.

However, the case actually exposed a serious problem with the counter-notice system, namely that there is nothing to force hosts to put back content that was taken down after a DMCA notice has been filed.

What Happens After a Counternotice

The way the DMCA is supposed to work is that a copyright holder can file a takedown notice and have the works they believe to be infringing removed. If the uploader of the content disagrees that the works are infringing, either disputing ownership or believing their use to be a fair one, they can file a counternotice and, after a 10-14 day waiting period, have the work restored.

But, when it was clear that Facebook was not restoring the work in question promptly, Yung wrote me to see what, if anything he could do to force their hand.

The only answer I had was nothing, at least not under the law.

Though media pressure prompted Facebook to correct the mistake, if Facebook had not wanted to restore the content, there wasn’t much Yung could have done to force them.

The reason is that Facebook, as do nearly all hosts, has the right to refuse to host anything they don’t want on their servers. Facebook puts this in their terms of service saying that:

If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you.

In short, all Facebook would have had to do is find some way in which Yung had violated the letter or the spirit of the terms of service and they could have denied him the right to post the works. All they would have been obligated to do is contact him and let him know of their decision.

YouTube, for example, takes this even farther saying that, after a counter-notice:

the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube’s sole discretion.

This means that you can file a counter-notice but YouTube can choose whether or not to actually restore the works, no reason need be given.

Finally, Myspace takes it yet another step farther saying that it:

reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, emails and instant messages (collectively, “messages”)) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the MySpace Services at any time, for any or no reason

What all of this means is that you filing a counternotice does not by any stretch guarantee that the work will be restored and, since you agreed to these terms, you have no legal lever to force the host to restore it.

It appears that, short of media attention, there is little means of ensuring a counternotice is complied with, no matter how legitimate it may be.

Bottom Line

The notice and takedown system only works if it is handled with balance and fairness. It would make sense that, if copyright holders have a legal lever to secure the removal of allegedly infringing material (namely through the threat of liability if they fail to) then it would seem logical that users should have a similar tool to secure its replacement if the notice is invalid.

However, not only does the law not allow for that, it simply allows the host to keep their safe harbor if they do restore it, but the current status of terms of services with hosts make it almost impossible as users wave just about every right imaginable when they sign up for any host or service.

How can we ensure hosts restore content after a counternotice when we have no means to ensure they keep up content that hasn’t been subjected to a copyright complaint? There isn’t much one can hope to do.

After all, if Myspace can remove your content “for any or no reason” then there isn’t much of a means to force them to put works back after a DMCA notice.

This highlights a weakness in the DMCA process and, perhaps more importantly, just how unbalanced the terms of service we agree to every day, usually without reading, really can be.

Though many of you might have seen this article last week when it hit the front page of Digg, I wanted to share it with the readers here.

Recently, I penned an article for brainz.org about the DMCA Notice and Takedown system, including how the law was developed, why it was seen as necessary, and how the system works (including counter-notice).

It’s a very basic primer on the law and how to use it that many readers of this site will probably find too basic, but if you’re interested in a thorough overview of the entire law, the article should suffice. It might also be good to send to friends and family who are a bit confused about the law.

So definitely check out the article and if you have any comments or questions definitely leave them. I’ll be checking there regularly to respond to any questions it might get.

Will return tomorrow with a full update!

photo credit: disavian

Most Web users are at least somewhat familiar with the DMCA safe harbor provisions and the notice and takedown system it provides. In short, hosts and other service providers are granted a “safe harbor” from copyright infringement claims so long as they are unaware of the infringement and work to “expeditiously” remove infringing content after receiving a proper DMCA notice.

However, there is a second, much lesser known, case where hosts can be required to remove allegedly infringing material. According to § 512(c)(1)(A)(ii), the law requires hosts to remove content where they are “aware of facts or circumstances from which infringing activity is apparent.” These are often known as “red flag” infringements and Ben Sheffner highlighted them in a blog posting on the recent Veoh ruling.

They are an interesting element to the safe harbor protections that gets very little attention. A situation where a host can be forced to remove content without receiving a takedown notice. However, when one looks at the thin case law on this particular kind of takedown, its easy to see why you probably haven’t heard of it. It’s never effectively been used.

However, perhaps most discouraging of all is that, even if it did become a regular part of our legal climate, it would do almost nothing to protect the vast majority of copyright holders.

Red Flags and Bulls

According to the DMCA (page 53) the test for whether an infringement raises a “red flag” or not is “whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances.” In short, similar to the “ordinary observer” test when looking at whether a work is a derivative or not, the statute is both subjective and objective, leaving a lot of room for interpretation.

However, the interpretations have been almost universally in favor of hosts. The most important case for such takedowns, also cited by Sheffner, is the Perfect 10 v. CCBill case, where pornography company Perfect 10 sued CC Bill for providing hosting and credit card services for companies and sites misusing their content. Perfect 10 tried to get the court to rule against CCBill saying they had ignored red flags, however, the court didn’t agree.

This came despite the fact that some of the sites had names like “Illegal Dot Net” and “Stolen Celebrity Pictures”. The court found that these cases shouldn’t have raised red flags as the names could have been “an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen.”

This has lead many to wonder what exactly constitutes a “red flag”. In that regard, the Veoh case may offer some clues as it does reference Veoh employees seeing likely infringing videos on the site and removing them without the need for a copyright notice. As Law Geek puts it when discussing the Perfect 10 case, providers must have concrete or actual knowledge of the infringement, something that is difficult to obtain and even more difficult to prove that they had. That seems to be reinforced in the Veoh case.

Imagine trying to prove, based up on hard evidence, that a host had a reasonable level of knowledge about an infringement and failed to act. If sites with names containing words such as “illegal” and “stolen” are not enough to raise red flags, then there is almost no way to show what does and that is a big part of why this particular element has never, to my knowledge, been successfully used.

However, this is not something to fret over, even if it were useful, it’s hard to see how it would protect the majority of copyright holders.

The Problem with Red Flags

The issue with red flags is pretty simple. Most copyright holders aren’t recognizable enough to trigger a red flag for a host. Your average photographer, blogger, etc. doesn’t have enough notoriety to either prompt a layperson working for a host to remove the content or to sue the company for failing to act.

Where an episode of “Heroes” appearing on YouTube almost certainly would raise a red flag (not to mention be caught in the content filter) a recycled post from a videoblogger would not.

There are two reasons for this, the first is notoriety, the second is licensing.

Even with a popular site the odds of one’s work being immediately recognized are fairly slim. However, even if it is, one can not make a judgment if the use is licensed. Where everyone knows where NBC/Universal stands on their works being on YouTube, it is much less clear where a layblogger does.

The DMCA expressly prohibits hosts from being forced to research to gather new information or actively patrol their content to remain DMCA compliant (though some use content filtering to keep major content providers happy and reduce costs on enforcement). As such, it is almost impossible to imagine a situation where an average blogger would be protected by a “red flag” case, unless their work was part of a larger site removed.

Unfortunately, this doesn’t mean that a user could just report an infringement and be done. That would likely be viewed as an end-run around the actual notice and takedown system, which requires either the copyright holder or an authorized agent to file the notice. However, it is unclear if this would be valid for a red flag takedown (I was unable to locate any cases) or if you could file other abuse complaints (IE: Spam) to draw attention to such a site, essentially waving a red flag without filing an actual notice.

However, for most copyright holders, this would be a tremendous waste of time. It is much easier, faster and direct to just file a takedown notice than try and trigger red flags through various other means. The only cases where this might be useful would be in protecting other’s rights, but there it would be just as easy to become an agent authorized to act on their behalf and help with the case through more traditional and reliable channels.

Bottom Line

The good news is that hosts are routinely removing content from their servers that is infringing. The bad news is that it probably isn’t yours.

Even apart from the “Red Flag” rules of the DMCA, hosts have a lot of motivation to keep infringing material off of their servers, the biggest being that it doesn’t support an atmosphere of creativity and originality of much of the content is just illegal copies of other’s work.

However, even hosts that don’t worry about their community, sites who infringe egregiously also tend to engage in other illegal behaviors including spam (Web and email), distributing malware and so forth. These sites tend to be resource hogs and hurt the reputation of a host both with potential customers and with the search engines.

Legitimate hosts have tons of practical motivation to keep obvious infringements off their services. But, as I’ve said, that won’t help most copyright holders as the infringements of their work are, for the most part, less than obvious.

This serves to highlight why smaller copyright holders need to learn how to properly use the DMCA system to remove infringing content that the infringer themselves will not act on. It is, in many cases, the best and most powerful tool for dealing with plagiarists and spammers.

As flawed as it is and as challenging as it is to use at times, its usefulness makes it impossible to ignore.

In recent months, Chilling Effects, the database of takedown notices and other cease and desist letters, had been very quiet. During the early months of the year, only a few items had been posted and, in fact, nothing had been posted at all in 2009 until February.

However, since the beginning of April, there have been nearly 200 postings to the service, almost all of them related to Google’s Blogger service. I spoke with Wendy Setzler, the project leader at Chilling Effects, and she said it was due to the “improved processing” of notices, especially on Google’s part (Note: The improvement has been mostly on Chilling Effects Part).

It is worth noting that the improvements in processing began shortly after Google began accepting DMCA notices via a form for Blogger, meaning that it is likely that, as part of processing the notices via the form, it is submitting them to Chilling Effects in a way that can be more easily processed and uploaded to the site. This is further supported y the fact that, of the notices I checked, all appeared to have come from Blogger’s DMCA form.

Currently most notices seem to be going up on Chilling Effects the same day that they are submitted, indicating a near record-breaking turnaround for these notices ad it has the potential to mean a very important new beginning for Chilling Effects as a service of record.

What This Means

What this means is pretty simple, if you plan on filing a DMCA notice with Blogger using the form, it will appear on Chilling Effects, most likely the same day. If this troubles you, you may be able to file a notice via fax or email and still get the works removed without it being processed, at least not immediately.

However, it has always been Google’s stated policy to submit DMCA notices to Chilling Effects and any notice filed with them may well be submitted. That being said, historically the majority of notices have not been or have at least not appeared on the site. In fact, even currently, no notices from Google Search, likely the most common recipient of DMCA notices, Adsense or other Google properties have been featured since the beginning of the year.

In fact, the only other Web property to feature significantly since April has been Digg.com, which has submitted several notices to the site that have been put into the database.

Whether this because Google is not providing the notices or if the Chilling Effects team, which is largely volunteer and is connected with several universities, is simply overworked. Setzler indicated that the number of notices they have been receiving has been increasing at a very rapid pace and that has placed a burden on the project.

Either way, it is clear that the site is now very active again and I certainly find that to be very encouraging, especially considering how little transparency there has been in the DMCA process.

Some Personal Thoughts

I’ve written before about the need for improved transparency in the DMCA process. As a believer that the DMCA process is, overall, a good idea that serves both copyright holders and the internet at large, I despise those who abuse it as they weaken the system and make it more difficult for those that wish to use it for its proper and intended purpose.

Chilling Effects has always been the best and most prominent effort to add that layer of transparency but it has struggled to be effective. The process of receiving notices, filtering out personal information, tagging them and posting them to the database has proved to be very time-consuming and they have struggled with the ever-increasing number of notices.

Hopefully this will be the beginnings of them getting a handle on this process and finding ways to automate it enough to make the database truly practical.

For those filing DMCA notices, especially over personal matters, the prospect of having their notices submitted to a public database may seem unnerving. However, I encourage people to never file a notice that they will not stand behind publicly. If you are only willing to file a takedown should it be kept private, it is one to re-evaluate.

The bottom line is that I applaud the work Chiling Effects is doing. Whether you are a critic of the takedown process or a supporter, it is easy to see that what they are doing is important.

In order to understand how best to legislate the takedown system, one must first understand how it is being used and that is exactly what Chilling Effects hopes to provide.

We have a very powerful copyright lobby that, among other things, has been able to obtain a seemingly never-ending series of copyright extensions that have kept ever-older works out of the public domain. We’ve been ground zero for the music industry’s lawsuits against file sharers and were also among the first to pass the controversial anti-circumvention laws that prohibit users from circumventing DRM schemes, even for otherwise legal uses.

Yes, U.S. copyright law has its problems. But before we begin to play “The Grass is Greener” we need to stop and actually look at the laws that exist in other countries. As it turns out, on average at least, the U.S. copyright system is not that bad, at least when considering the rights and interests of users.

If you don’t believe me, consider the following points before packing up and moving abroad.

Fair Use

Fair use has its flaws, it is only a defense against an infringement and the only way to be certain that a use is fair is to be sued for it and then emerge victorious in court. However, those of us in the U.S. should be grateful that we have it as the idea is almost wholly American.

Other countries have what is known as “Fair Dealing” (Warning: Wikipedia link). Though it sounds similar and has many of the same concepts built in, fair dealing is almost always much more limited than fair use. Typically, fair dealing is limited by types of uses, usually news reporting, research and criticism.

The broad, flexible, open to interpretation fair use exemptions in the U.S. simply do not exist in most countries. Though the laws of other nations provide little extra clarity, they do, on the whole, provide much greater restrictions on use.

Crown Copyright

In the U.S., the central government is not able to hold a copyright interest in any work they produce. You can read that on the White House Web site.

This is for a lot of reasons.

• Since taxpayers paid for the creation of the work, it makes no sense they should have any restrictions on its use.
• To prevent the Federal government from using copyright as a means to prevent free speech.
• To encourage broad distribution of works created.

Other nations, however, are not so generous. In the UK, as well as some other commonwealth nations, they have Crown Copyright, and other nations have similar provisions. Even Canada has a well-established crown copyright that asks people to obtain a license to use the work.

Such licenses are never required in the U.S.

Insane Notice and Takedown

Though the safe harbor provisions has been a source of controversy in the U.S., they, over the past 10 years, seem to have been viewed as a net positive. Though there have been abused by more than a few organizations, they have also enabled the boom in user-generated content and, as the Diebold case showed, laws preventing abuse of the takedown system do have teeth.

However, as the same provisions made their way around the globe, many of the protections that make the law work in the U.S. were not included. Based on the WIPO treaty, other nations took a very different tact on the law.

Take a look at the EU. There, anyone can file a copyright complaint, not just the copyright holder. One does not have to swear under penalty of perjury and one does not even have to provide good contact information when filing a notice. Though different nations may have added elements of this back, a 2004 study found that 70% of hosts complied (PDF) when being demanded to take down a public domain work.

The study, legally, could not have been performed in the U.S. as the DMCA would have made it dangerous to file false notices, even for research.

Conclusions

Does the U.S. have it’s share of copyright problems? Absolutely. If we look at it strictly from the point of view of user’s rights, the U.S. certainly has a lot to worry about. Though many of the more controversial aspects, including anti-circumvention, have made their way elsewhere too, the U.S. does have its share of relatively unique copyright issues.

Of course, the most unique of those issues impacts copyright holders. After all, we’re the ones that have to register with an outdated and outmoded copyright office before we can sue for infringement. We are also one of the few countries that does not grant copyright holders moral rights protections in their work, lessening creative control and naming rights.

The U.S. is no copyright utopia, nowhere near, but it isn’t as bad as many make it out to be, at least as far as user rights go. Simply put, the grass isn’t much greener anywhere else and if we’re going to update and improve copyright law, both for rights holders and users, it is going to have to be an international effort.

This country-by-country approach is pure folly in the Internet age.

The quiz seemed to generate some interest, just not the kind I had expected. A few people wrote me to ask if one of the questions was possible and, if so, how to do it. Still the, first poster, Andy Murdoch of MMMeeja, a very neat looking Web design and development company, was the one to get the questions right.

So what were the correct answers and why? We’re going to take a look at the questions one at a time to see what the right answer was and

The Answers

What are three ways you can request your site be removed from Google search? (Note: This is your own site or a page on it, not an infringer)

Not surprisingly, there was more than three correct answers. The most common ways involve using robots.txt or meta tags. But you can also use Google Webmaster tools to remove the site or you can direct your server to respond to Google with an error code.

There are other ways, but those are the most common.

What is the email address for the Google DMCA agent? (please only include the part before the @).

The answer is DMCA-agent. This was actually something of a trick question. Google recently changed its DMCA information, the former address was amac. However, since I’ve mentioned the previous address on this site and it appears to still work, I would have accepted it as an answer.

What, according to Matt Cutts, is the most effective way to report spam to Google?

The answer was right here on Plagiarism Today. Matt Cutts has said that spam reports filed through Google Webmaster Tools are given much more weight than those files through other means.

What is the name of the Google service that will email you search results as they are picked up by Google?

Google Alerts. I’ve mentioned this service many times on this site and it remains one of their best anti-plagiarism/copyright infringement tools.

What is the name of the Google spider, or rather, the name you need to refer to it as when you are trying to block it?

Googlebot. This one was pretty simple actually and you can find it on any number of sites.

What is the meta tag command to prevent Google from displaying a sample of your content in their results pages?

This was the one that seemed to pique people’s interest. I got a couple of emails asking me if this was even possible. It’s actually pretty simple. The meta tag command “NOSNIPPET” will prevent Google from displaying the snippet in their results pages.

You can read about this and other neat Google Meta Tags here.

What search command lets you see approximately how many pages Google has indexed on a site?

site:yourdomain.com. Important to note that this method is rather dubious in its effectiveness. The results tend to differ wildly from search to search but can still give you a rough idea of the range of indexed pages.

Conclusions

All in all, most of the questions in this quiz were pretty basic. Outside of the Matt Cutts and the NOSNIPPET questions, most of the questions could be answered any number of places.

The goal was to get people thinking about how Google users their content and what tools they are provided with to control that.

I hope everyone enjoyed this quiz and look forward to another one in the near future!

Special Thanks: To Red Vs. Blue for the CTRL+ALT+BINGO Joke. Too good not to reuse…

Between large corporations filing DMCAs by the thousand, DMCA notices used to silence critics and other issues over the years, the safe harbor provisions have shown that, in the wrong hands, they can be a very dangerous tool.

Fortunately, most of the major cases where safe harbor was clearly being abused either have been or will likely be resolved by the courts in favor of those injured.

However, this has not stopped me from thinking of ways to improve and fix safe harbor, both to reduce the number of incidents where the system is abused and improve the overall efficiency of the process.

The Short List

Though, if I could get the ear of lawmakers, this list would actually be much longer, there are five improvements that I consider critical to making the safe harbor provisions work better and more fairly.

1. Transparency: I’ve spoken on this before but a gaping hole in the DMCA process is that there is almost no transparency to the process. The person who had the notice filed against them rarely sees the actual letter, there is no public examination of filings and accurate statistics are impossible to glean. Though sites such as Chilling Effects attempted to create databases for this purpose, hosts have not participated reliably and only a small percentage of notices are available for viewing. Greater transparency, both with the subject of the notice and the public, is needed both to discourage false notices and to better understand how the law is used.
2. Centralized Reporting: Currently, in most cases, the greatest challenge in filing a DMCA notice is not legal, but technical. Locating a host and finding their DMCA agent is complicated process that few are able to perform. The U.S. Copyright Office keeps a database of DMCA agents, but the information is both dated and difficult to access. A central means of reporting infringements to U.S. based hosts, if done with proper protections, would fix much of the problem. As it sits now, it is mostly large corporations, who can afford the research and legal expenses, that enjoy the benefits of the DMCA. Simplifying the process would allow more small copyright holders to protect their work.
3. Stronger Punishments for False Notices: Currently, the law states that anyone who misrepresents an infringement, either in a notice or counter-notice, is “liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation.” In most cases, this would be a very small amount and provide little motivation to sue. Though other laws may apply, the DMCA needs to bulk up the damages for filing a knowingly false notice or counter-notice.
4. Update For Modern Technology: The DMCA was written in 1998. Though it is a baby in terms of copyright laws it is already very far behind in terms of technology. Ten years ago, the term “online service provider” was much easier to define. Today, with sites such as Youtube and services such as Second Life, there is much less clarity and that has impacted the usability of the law as well. Hosts are now more than mere repositories for data and the law needs to reflect that.
5. Addition of Link Requests: The DMCA safe harbor system is a true one-trick pony, the removal of the allegedly infringing material. However, many copyright holders are happy to share their work, so long as they receive proper attribution. Give copyright holders the option of requesting a link request or other attribution instead of merely removing the work. Hosts win because they don’t have to disable user accounts, “infringers” win because their sites remain up and copyright holders win because they get links back to their original content.

Though most of these changes would be fairly simple to implement in terms of the law itself, they create technical and other challenges that will likely keep them from happening.

In the end, I am forced to admit that we are likely stuck with this outdated and easily-abused system that not only favors large copyright holders, but also ensures that the applicability of the law is almost always in doubt.

Conclusions

No matter what you may think of the safe harbor provisions, the truth is that, without the protections it provides hosts and other online service provides, much of the Internet we have today would not be possible. Without the legal security the law provides, many sites we enjoy would be too risky to be feasible.

Still, as laws go, it is a flawed one. However, it is not beyond all repair. Considering the other copyright legislation to have been cooked up by our Federal government, as well as other elements in the DMCA itself, the safe harbor provisions are easily some of the better rules.

Hopefully though, they can be improved and honed to eliminate many of the problems with the law and help copyright holders, hosts, search engines and users alike enjoy the rights and protections the law provides.

Images: Some of the images for this article were captured from YouTomb

photo credit: gruntzooki

Whenever I work with Webmasters and bloggers to help them file DMCA notices to get their content removed from copycat sites, they inevitably have a lot of questions about the law and how to use it. Though I am not a lawyer, I do my best to answer them.

However, to save time and effort, as well as help those who didn’t want to ask, I’ve compiled a collection of FAQs about the process with my answers to them.

Hopefully this FAQ collection will answer most of your questions about the DMCA process and, if it doesn’t, please feel free to ask your question in the comments below so it can be added.

What is a DMCA Takedown?

The Digital MIllennium Copyright Act of 1998, among its many parts, granted a “safe harbor” to Web hosts and search engines for infringement perpetrated by their customers. This means that hosts can not be held liable for any copyright infringement that their customers perform so long as they meet certain criteria.

One of the criteria is that they have to “expeditiously” remove allegedly infringing material when properly notified. A DMCA notice, also known as a DMCA takedown, is simply a letter that fulfills the requirements of the DMCA demands the removal of the work either from the search engine or the host.

Hosts, in order to preserve that safe harbor, need to comply with properly-filed DMCA notices.

Should I file with Search Engines or Hosts?

There are different schools of thought here. Some feel that, by filing with the search engines and waiting to file with the hosts until the search removal is complete, you can more completely wipe out an infringing site and prevent it from coming back.

However, search engines are slow to respond. Google can take several weeks and has complicated notification requirements. The quickest route is almost always to file directly with the host and have the work removed directly. It is also by far the easiest way, requiring just one notice, as opposed to five or more the other route.

Still, in most cases the decision is up to the filer. However, if the site is hosted in a country that does not have a takedown provision, search engine removal may be the only option.

I Am From Another Country, Can I Use the DMCA?

Yes. The DMCA allows all copyright holders, no matter where they are located, to use the takedown process. THe jurisdiction of the law is based upon where the site or search engine is hosted and the vast majority of both are within the U.S.

I have seen cases where a British man used the DMCA against an Australian plagiarist simply because the plagiarist hosted the infringing site with the U.S.

What if the Site is Hosted in Another Country?

The procedure for requesting a takedown was created by a WIPO treaty that mots countries are signatories to. However, many have not fully implemented the treaty and, as such, have no such procedure.

However, most countries that host a large number of sites, including the whole of the EU and Australia, have a process in place that functions very similar to the DMCA.

In many cases, sending a DMCA notice will work, even if the host is foreign. However, even hosts in countries without takedown procedures consider copyright infringement to be a violation of their terms of service. Therefore, even in those cases, you can often file an abuse report and secure removal of the site.

Can they Get the Work Restored?

One who has a DMCA notice filed against them has two choices for restoring the site. First, they can move to a different host and restore the site that way. Second, they can file what is known as a counter-notice and secure the return of the work.

A counter-notice is much like a DMCA notice but in reverse. Where a DMCA notice claims that the work is infringing, the counter-notice claims that it is not and demands that it be restored. Unless the person who filed the original notice files suit and secures an injunction, the work will be reposted after a waiting period.

Counter-notices, however, are extremely rare, especially if the DMCA notice was clearly justified. Such notices open up the person filing them to a slew of legal problems and, in general, it is easier to just move on.

Most cases where a site is restored involve moving the content to a new host.

How Many Should I Report?

There is no set answer to this. You can send as many or as few as you want. Just remember that any you don’t include you can always file another notice regarding later, in the event that the entire site isn’t taken down.

Still, most DMCA notices include between 5-10 items whenever a large list is involved. Some will include far fewer and others will do one item per notice. However, for the most part, it’s better to find a balance.

How Long Does it Take to for a Response?

The answer varies. Some hosts will act in less than 24 hours, others will take over a week. The more typical timeframe is between 48 and 96 hours.

However, it is important to note that hosts will typical secure removal of a work and then wait a day or two before sending an email to confirm the takedown. The reason is that they want to ensure that all cached copies of the work are cleared to avoid any confusion about the work still being up.

Will the Host Shut Down the Whole Site?

This depends on the circumstance and on the host.

If the site is largely composed of infringing material, such as with a spam blog, the host is likely going to just cancel the whole account. If the infringing work is just one or two items in a larger site, they will likely have owner of the site take down the specific items or, in some cases, surgically remove the works themselves.

Some hosts, such as Myspace, are known for surgically removing infringing works and almost never shut down an account on DMCA complaint. Others, such as iPowerWeb, frequently shut down whole sites.

To improve the odds of a domain being shut down, if you have more items to include in your DMCA notice, do so. If you reported the site once and the works were surgically removed while other infringing items remain, report the other works in a second notice.

Under the DMCA, hosts are required to ban repeat infringers from using their service.

Can I Get Into Trouble?

In order to file a DMCA notice you need to swear under penalty of perjury that you have a “good faith” believe that the work is infringing and that you are the copyright holder or an authorized agent.

If you file a knowingly false DMCA notice there are many potential legal consequences, some of them very dire. However, there is much debate and even conflicting rulings about what constitutes a “good faith” belief and where the bar is placed for meeting that test.

Generally speaking, though I am not an attorney, if you stick to cases of clear-cut copyright infringement such as scraping, plagiarism, etc. and avoid cases that raise fair use issues, the risk of trouble is relatively low.

Sadly, even cases where the DMCA notice was clearly false rarely result in as much as a counter-notice due to the legal uncertainties. This has enabled much of the DMCA abuse we see and has contributed to the reputation of the law as being one used to silence critics or stop fair use.

Is There Anything Else?

The DMCA is a powerful tool and should be used carefully. Be responsible with your plagiarism fighting and be cooperative with hosts as much as possible.

If you have any questions, feel free to write me either via the contact form or sending me an email to jonathan at plagiarismtoday dot com.

The proposal calls for Linen Lab to periodically publish, among other things:

• The number of notices filed
• The average delay in action on a DMCA notice
• The number of takedowns executed
• The number of counter-notices filed
• The number of takedown notices that resulted in a putback

But while the idea is especially good for Linden Lab, whose DMCA policies have been under pointed fire in recent months, it is an idea that can easily be expanded to all Web hosts.

It is an proposal that those both in favor and against the notice and takedown provisions of the DMCA will likely agree on and something that could bring a great deal more understanding the entire process of dealing with copyright infringement on the Web.

The Importance of Transparency

One of the major problems with the current notice and takedown regime is that a copyright holder can send in a DMCA notice and track the response to it but no idea where that notice fits into the larger picture.

How many notices does a host receive? How long, on average, does it take them to reply? How many do they discard for being incomplete? How many counter-notices do they receive? These are all questions that are typically closely-guarded secrets for Web service providers.

Many fear, rightly or wrongly, that providing this information could result in legal difficulties should a DMCA dispute go into the courtroom.

However, this has made understanding the full impact of the notice and takedown system almost impossible. With few hard facts, we are left largely with just anecdotal evidence of DMCA abuses and successes. Unfortunately, this evidence is completely useless when trying to understand the larger picture and obtain information upon which future policy may be written.

Even I, having personally sent hundreds of DMCA notices to many dozens of hosts, have only a tiny fraction of the DMCA picture. My experience is colored sharply the types of cases I have handled, all of which have been plagiarism-related, and the hosts I have worked with.

Despite the years I’ve spent working with the DMCA and hosts on copyright matters, my information is, at best, an educated guess. Sadly, that’s all anyone who does not work for a Web host can provide as we can not see what takes place behind the scenes.

It is a frustrating problem and, sadly, the attempts to address it have largely failed.

Past Attempts

The Chilling Effects database is probably the best-known attempt to provide DMCA transparency.

The idea was to provide a site that hosts and search engines could submit DMCA notices to and have them published publicly (minus personal information). This would, theoretically, allow researchers to access the database and draw conclusions about how the DMCA was being used.

The idea, initially, received a great deal of support and key Internet players, most prominently Google, promised to send all of their DMCA notices to the database.

However, the database has fallen into hard times. Few new letters are published, the most recent on March 5 of this year, and most of the ones that are published are controversial ones such as the Air Force DMCA notice and the recent moves by the NFL.

Google, in their auto-reply to submitted DMCA notices, still says the following:

“Please note that a copy of each legal notice we receive is sent to a third-party partner for publication and annotation. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects for publication.”

But despite that, none of my notices in the past few years have appeared in the database. In fact, only one notice from me appears at all and it is from 2005.

Chilling Effects was used for one study back in late 2005. The report, authored by Jennifer Urban of the USC Gould School of Law, found that nearly 1/3 of all DMCA notices were improper in at least one way. However, as I pointed out in my original article, the use of Chilling Effects may have biased the findings due to the nature of the service.

Unfortunately, the full study has not been released as of this writing and is listed as being “forthcoming” on Urban’s faculty page.

Outside of Chilling Effects and anecdotal accounts from hosts, such as Dreamhost’s recent blog entry on the topic, there has been very little in the way of hard data about how hosts respond to DMCA notices.

A Proposal

Clearly there is a need for hard data in this area and the only people that can provide it are the hosts and search engines. Therefore, there is a need for a broad push to improve transparency in the DMCA process.

However, that being said, a database of actual notices, such as Chilling Effects, is likely not the way to go. Such a database would either be incomplete or too large to be practical.

However, even if we had nothing more than numbers and general information about policies, it would provide us a much better understanding about the DMCA process than what we have now. To that end, Merideth’s proposal is fairly sound.

The idea of encouraging hosts to provide regular updates as to their DMCA actions makes sense. It not only helps copyright holders understand how the the host responds to notices, but it helps users of the site know what to expect should a copyright issue arise.

However, I would make the following changes to Merideth’s proposal to make it more applicable to practical for hosts:

1. Make the Report Quarterly: Monthly may or may not be practical for Linden, but most Web hosts would be doing good to create just a quarterly report. That should be fine in most cases.
2. Eliminate Information That Isn’t Necessary: Initially at least, we should focus on the core information. That would include the number of notices received, the number discarded, the number that resulted in a takedown, the average time between receipt and takedown and the number of counter-notices received. If hosts are comfortable providing more information, that would be great, but since most are not under the level of scrutiny Linden Lab is under, it makes sense to request less.
3. Add Policy Information: Right now, what happens after a DMCA notice is filed is something of a mystery. From talking with hosts I know how some handle it, but there is precious little information about how a notice goes from a submission to a takedown. This might make a natural addition to all Web host’s copyright pages and would be largely static unless there was a change in procedure.

In addition to those changes, I would also suggest that hosts provide a random sample of the DMCA notices they received to an online database similar to Chilling Effects. It would not be necessary to send every single one, just a statistically significant percentage. Hosts could, possibly, send every twentieth or hundredth notice to the database depending on how many they receive.

The bottom line though is that any information we can get that goes beyond the anecdotes and horror stories we have to work with will be a drastic improvement over the current situation.

Conclusions

In the end, it is unlikely that hosts will release this kind of information voluntarily and even less likely that any kind of legislation will require them to do so.

Though those of us who are interested in copyright law, both for and against the notice and takedown provisions, would greatly appreciate transparency from the hosts, these types of statistics are considered closely-guarded secrets and will almost certainly remain that way.

In addition to legal issues that may arise from releasing such information, especially if a host is slow or unresponsive to DMCA notices, many fear that it will color customer perceptions if it is known just how many notices they receive and act upon.

Sadly, it is an area where practical business decisions may overshadow the need for good information and good policy. Few hosts are going to spend time and money to publish information many would consider unsavory, no matter how important it might be.

Still, it would be nice to see hosts take initiative in this area and do something to help others understand just how the DMCA is used. If a host wants to criticize the current law, then giving the public and the government the information to make sound decisions is the first step to fixing the problem.

Without that, then there is pretty much no hope of the law ever changing.

Differences between the sites became clear as sites with more money, and thus better access to legal advice, had much more complete policies than those with more humble means.

However, social news is not the only growing segment of the Web. As digital photography and online artwork has become easier and more accessible, photo sharing and image hosting services have also grown rapidly in size.

However, the boon in online image hosting has also given birth to a sharp rise in image theft. Now, anyone with a Flickr account can trivially download an image and post it to the Web. There’s no need to have a Web site at all and the image can be embedded anywhere desired, including on social networking sites.

This has made the copyright enforcement policies of these image sharing sites especially important because, without cooperation from the major players, this type of plagiarism can go unchallenged.

So, I’ve decided to continue my analysis of DMCA policies on various sites by reviewing the policies of seven of the top photo sharing sites including Photobucket, ImageShack, Flickr and more. Here is what I found.

Format: Email
Email Address: abuse at photobucket dot com
Location of Policy: Copyright and IP Policy
Registered with USCO: Yes
Comments: Robust and to the letter of the law, Photobucket sets a very high bar for its competitors. Not only is its DMCA policy complete, including counter-notice information, but the site also offers similar policies for violations of trademark and privacy. The only complaint I can offer about their policy is that it is difficult to find. It is not included in their contact information, but rather, in the footer of their terms of service. A link to the policy, as well as information on reporting other abuse, should probably be located in an easier to find place. Still, the policy itself is very sound and offers great information for anyone looking to file a notice or counter-notice with the company.

Format: Form
Email Address: See Form
Location of Policy: None
Registered with USCO: No
Comments: In stark contrast to Photobucket, ImageShack completely lacks a formal DMCA policy. Though they provide a Web form to report infringing images, there is no other contact information (fax, email, address, etc.) and no guidance on filing a notice. Reports from others who have filed DMCA notices with Imageshack have indicated a spotty record on acting on infringing material when notified by this means. Worse, the default template of the abuse form is woefully inadequate to report copyright infringement in accordance with the law and, as of this writing, ImageShack has not registered with the U.S. Copyright Office. Though their relatively short terms of service mentions copyright three different times, their overall policy shows a general lack of planning.

Format: Email
Email Address: copyright at yahoo-inc dot com
Location of Policy: Yahoo’s Copyright and IP Policy
Registered with USCO: Yes
Comments: Owned by Yahoo, Flickr shares its DMCA policy with the search giant. Yahoo has had a strong and robust policy for as long as I can remember for both its search and other hosting properties. Flickr benefits greatly from that experience. The information provided is short but complete, the policy is easy to find, located in the footer on every page, and provides all of the necessary information. Though the lack of counter-notice information is somewhat worrisome, that is likely something they handle when communicating directly with individuals that have been served with DMCA notices. All in all, it is a well-rounded and simple DMCA policy that is more or less what you would expect from Yahoo.

Format: Email
Email Address: copyright at webshots dot com
Location of Policy: Copyright Violation Policy
Registered with USCO: Yes
Comments: Owned by CNET, Webshots has a very simple but effective DMCA policy. Located in the footer of each page, the policy goes through the basics of providing a DMCA notice to the site and offers up all of the necessary information to get in touch with the designated agent. The site is also registered with the USCO. The only concern I have with Webshots is that they repeat the information in their terms of use but provide different contact information (the TOU says “General Counsel” while both the USCO filing and the IP policy directs it to the agent). Also, the IP policy in the TOU omits the email address. However, that is likely an oversight and, in general, their DMCA policy is very complete and well done.

Format: Email
Email Address: copyrightagent at smugmug dot com
Location of Policy: “Copyright Complaints”, Terms of Use
Registered with USCO: No
Comments: The only paid service on this list, SmugMug has one of the most unusual copyright/DMCA policies. Buried in the terms of service, where it is very difficult to find, the policy can be best described as “short but sweet”. It covers the basics including the agent’s contact information and the required elements of the notice but doesn’t offer much else. Strangest of all, the terms of use do not make any mention about copyright infringement being a violation of their terms and, outside of the policy, the only mention of copyright at all revolves around the protection of their own works. Perhaps even more disheartening is that they place their own copyright warning above their DMCA policy, thus highlighting their own protections before discussing their DMCA information. This site is not registered with the USCO and, though the policy is complete, it seems, in general, to be more of an afterthought.
Update: I spoke with the general manager of SmugMug. He was very grateful for this review and has already sent off his application for USCO registration in response to it. Also, he pointed out that their terms of service does make mention of copyright under their “License Granted by Users” section. They were planning on reworking their terms before this article and will likely rearrange it to make it more clear. Still, not seeing that was my mistake and I apologize.

Format: Email
Email Address: infringement at snapfish dot com
Location of Policy: Copyright Infringement Policy
Registered with USCO: Yes
Comments: A very basic policy. Provides the information required including the contact information for the agent and the required elements for notification but doesn’t go out of its way to help either those submitting notices or those seeking put-back. There is no counter-notice information and the policy itself is buried as link in their terms and conditions. The site has registered with the USCO and, by all appearances, has done everything required to comply with the letter of the law. All in all, Snapfish’s policy is unimpressive in every regard.

Format: Email
Email Address: abuse at bbridgetech dot com
Location of Policy: Last Item, Terms of Service
Registered with USCO: No
Comments: The cool photo sharing site with a funny name has a less than cool DMCA policy with a less than serious approach to the matter. Though their DMCA policy provides the email address to contact their abuse department and the basics for submitting a complaint. It does not offer much else. Zooomr has not registered with the USCO as of this writing and provides no other means of contact such as snail mail, fax or phone. However, these limitations are representative of their entire terms of service, limited, unprofessional and done with haste. It seems that their entire abuse system lags well behind most other Web sites in this field.

Conclusions

All in all, of these sites, only ImageShack was truly lacking in its policy. All of the other sites have policies in place and provide the necessary information to file a notice. Though three, ImageShack, Zooomr and SmugMug had not registered with the USCO as of this writing, the other four had.

It appears that, while many of these sites have flaws and concerns, that most of them are interested in at least following the law as it is written and working with copyright holders.

However, this is not a complete list of photo sharing sites by any stretch. I can think of at least a dozen others that are not on this list. I will likely return in a few weeks to create a part two of this series, where I will cover seven more photo sharing sites.

Also, in a bid to make this a regular “Thursday” event, I will also be posting on the DMCA/Copyright policies of top social networking sites as well as video sharing sites.

If you have any suggestions for this series or know of any sites that you want covered, please leave a comment below. I would love your input on this.