Two weeks ago, I did a post about 5 Misconceptions Sites/Hosts Have About the Digital Millennium Copyright Act (DMCA) and highlighted how some companies that seek safe harbor protection under the DMCA often misuse the law or fail to complete the requirements under it in order to ensure their protection.
However, it isn’t just sites and hosts that are often confused about how the DMCA works. Copyright holders, the ones filing the DMCA notices, often misunderstand the law as well.
But, as with hosts, these misconceptions are dangerous as filing a false or improper notice can come with some very severe penalties. So, if you’re filing DMCA notices, it’s worth your time to make sure that you understand how the law works and that you file notices only when appropriate and in the correct way.
What that in mind, here are five of the more common miscoceptions I see when working with other filers and, more importantly, how to fix them.
1. The DMCA is for Trademark/Defamation/Etc.
The DMCA is a copyright law, as per the “C” in the name. It is exclusively for copyright matters and should not be used for resolving trademark, defamation or other, unrelated disputes.
While it’s rough when people are saying cruel, untrue things about you online, the law doesn’t offer an easy way to get such speech removed and using the DMCA as a lever to do so is not just inappropriate, but legally dangerous as knowingly filing a false DMCA notice can get you sued and force you to pay some very high damages.
In short, you need to make sure that the issue at hand is a copyright one, meaning that the use of the content is an infringement over a copyrighted work that you are the creator or exclusive rightsholder in.
2. I Can File Over Any Infringement You See
While it can be frustrating to see people you know and love having their content infringed, you can’t file DMCA notices for content where you are not either the copyright holder or are an authorized agent to represent them. As a third party with no involvement in the case, you can’t file a DMCA notice as it would not only be a false notice, but likely perjury if the notice is filled out correctly.
Likewise, it’s wroth noting that anything that you create for your job is, most likely, owned by your employer. As such, you can’t file a DMCA notice over work you created as a part of your employment unless you are authorized to represent your company.
This means, for example a journalist can’t unilaterally file takedown notices over copies of articles posted elsewhere online.
The best thing you can do is report the infringement to the copyright owner and let them handle it if they wish. After all, they might not want to do anything or, in some cases, it could actually be a legitimate use of the work.
3. I Just Have to Let the Host Know About the Infringement
Many believe that filing a DMCA notice is as simple as sending a note to the host and asking for the content to be removed.
However, a DMCA notice has a series of requirements that must be fulfilled including statements swearing to the facts under the penalty of perjury and a statement of good faith belief.
If you just send a polite letter without all of the elements, most hosts will ignore your notice.
4. The DMCA is International
The same as with many hosts, many filers also forget that the DMCA is a U.S. law and does not apply to other countries.
While it is true that many nations have adopted DMCA-like laws and have similar notice-and-takedown regimes, the requirements are often different. However, it is also true that many nations (and hosts) have used the DMCA notice format as the de facto template for such takedowns simply due to how common DMCA notices are.
However, don’t assume you can file a DMCA notice to hosts in other countries and expect them to respond. Many nations don’t have such laws and, even if they do, language barriers and legal differences can get in the way. Take the time to research the country you’re filing in and see what you need to do for that specific case.
5. The DMCA Notice is the End of the Matter
It is true that DMCA notice is usually the last word in a dispute. The notice is filed, the work comes down and the person it was filed against doesn’t bother with it one way or another.
However, technically, the filing of the notice is not the end of the process, but the beginning. The notice means that the host has to remove or disable access to the work but the person who the notice is filed against has the ability to file a counter-notice to get the work restored (after a 10-14 day waiting period).
The filer then has the option of filing a lawsuit and obtaining an injunction against the restoration of the content.
The reason for the confusion though is that counter-notices are very rare and, even when they are filed, the host has no obligation to actually restore the work.
For the most part, the DMCA system seems to work fairly well. By a wide margin, the majority of notices filed are complete, proper and seek the removal of infringing material. This is a big part of why counter-notices are so rare. Flagrant abuses, while widely-publicized, are actually very rare and are often dealt with harshly by the courts.
Still, it’s important for filers to be aware of what the law says, what their responsibilities are and what is supposed to happen when a notice is filed. This is crucial not just to ensure that you comply with the law, but that you hold hosts to their responsibilities as well.
The DMCA works best when everyone knows and follows it closely. Problems, generally, only arise when someone fails to understand what they’re doing or uses it maliciously.
In short, if we can kill the misconceptions around the DMCA, we can make it a better tool all-around and, in the long run, a slightly better Web for everyone.