The Requirement of a DMCA Notice

Without naming any names, there have been a lot of posts on the Web lately from people frustrated by a host’s response to a copyright complaint, including several that I have had very positive experiences with.

However, when I or someone else ask these individuals about the format of the submitted complaint, almost none submitted a formal DMCA notice.

While it’s easy to understand and sympathize with their anger and frustration when it comes to protecting their work online, taking out those frustrations on the host in question is unfair, especially when the notice wasn’t sent in the proper format.

Simply put, the hosts lack of cooperation wasn’t an active decision on their part, but rather, a situation that was forced upon them.

Brief Background

As I’ve stated before many times, I would prefer to handle copyright complaints without DMCA notices. Traditional abuse complaints are quicker, easier and have built in safeguards to deal with completely bogus claims. Nonetheless, major copyright holders such as the RIAA and MPAA demanded protection of their works online and the DMCA was born.

A large portion of the DMCA was a compromise between hosts and copyright holders. Copyright holders wanted a way to ensure that they could easily stop any infringement of their rights online and hosts wanted an assurance that they could not be sued for infringement taking place on their servers without their knowledge.

Many saw it as a win-win and a necessary move to keep the Internet moving. However, smaller copyright holders and end users lost out big as the methods for handling copyright infringement grew more complicated and the protections for innocent bystanders waned. A law designed to protect hosts and copyright holders only dumbfounded independent writers and musicians while turning into a legal way to shut down any site, at least for a period of ten days.

While I doubt that anyone intended this, it was an easily predictable outcome nonetheless.

The Complication

Hosts are certainly free to respond to unformatted copyright complaints sent to abuse accounts. Many do. Though all hosts are required to respond to properly formatted DMCA complaints sent to their agent’s account, what they do above and beyond that is up to them. I certainly encourage that and actively applaud hosts that do so.

However, most see doing that as a very dangerous thing. Given the complexities of copyright law, taking down a work simply because someone claims it to be theirs can be dangerous. In addition to the lost potential damages to lost business for a business site, there are also issues of slander (since one is usually saying publicly that a site violated the terms of service) and a slew of other potential torts that can stem from shutting down an account that wasn’t infringing.

Granted, the likelihood of such a suit is slim and most hosts have lengthy disclaimers designed to protect them in these situations, but the threat of a potential lawsuit is enough to scare companies, especially larger ones, away from an activity, especially if it isn’t necessary. Even if only one out of every ten thousand of people shut down for copyright infringement consider suing their host, that’s more than enough to put worry into the Googles and Microsofts of the world, which most likely shut down thousands and thousands of accounts a year for various violations.

In that regard, the DMCA covers hosts from a different kind of attack. It’s very difficult to sue a host for something that they were legally obligated to do. The buck is effectively passed since the person filing the complaint signs the statement under the penalty perjury and effectively places the host in the position of a second victim. After all, they didn’t want to remove the work, but were forced to and have the document to prove it.

Hosts, for both legal and practical reasons, don’t want to involve themselves in copyright disputes and the DMCA offers them the perfect out. They’re able to quickly fulfill their obligations and move on without any realistic fear of reprisal.

Needless to say, this works out about as well as possible for hosts, especially those with thousands, if not millions, of accounts.

What to Do

The solution is simple, take the time to learn how to send a DMCA notice or find a template of one and then save a stock notice that you can change out the information in and use it over and over and over again.

Even though I and many others do not like the DMCA, it is a harsh reality and one we might as well learn to work with, even as we battle to change it.

Until that happens though, it’s not fair to criticize hosts that don’t handle copyright complaints that don’t come as DMCA notices. Though I will continue to applaud hosts that don’t require them, I will never penalize those who do.

Simply put, hosts are in far too complicated of a situation judge. Every site has to make up their mind what is right for them and, considering how easy it is to create and send a DMCA notice, a requirement of one is not a major obstacle.

Besides, protecting one’s copyright is worth taking the time to do it properly. We all have to take a certain measure of personal responsibility in this fight when protecting our works.

Which, coincidentally enough, is one of the main themes of this site.

[tags]Plagiarism, Content Theft, Copyright, DMCA, Copyright Law, Copyright Infringement[/tags]

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