The Digital Millennium Copyright Act is the primary law sites must comply with if they allow third parties to post content. The “DMCA” provides safe harbor provisions that keep a site from being sued for copyright infringement by users of the site. Immunity only occurs if you follow the specific requirements of the law.
Alright, let’s start off with my disclaimer. This article is intended to be educational in nature. You should not use the following outline for your site because there may be something about your site that requires a different approach. The DMCA is a complicated law with many subsections, so don’t be a buffoon. If you are going to allow people to post to your site, go ahead and hire an attorney in your area to create a process and procedure specific to your site. Remember, complying with the DMCA keeps you from being sued! Do it!
1. DMCA Agent Designation
The DMCA requires each site seeking protection under it to designate a DMCA Agent. [You can see a DMCA agent service here.] A site must list the name and contact information for the agent in the DMCA policy published on the site. If a copyright owner wishes to file a complaint, they do so with the agent. The Agent must then expeditiously remove the content in question. “Expeditiously” is considered to be within 48 hours. In short, you need someone who is responsible for this position.
Once you have identified the person that will be the Agent, you need to file the designation with the Copyright Office at the Library of Congress. You file online and the cost is a staggering $6.
2. DMCA Policy
The next step is to create a written DMCA policy for your site. This policy sets forth the information copyright holders must submit when making a claim. This information is called out in section 512 of the law. Your policy will also identify the DMCA Agent and how the aggrieved party can submit their claim to the Agent.
3. Repeat Infringer Policy
You next need to create a repeat infringer policy. This policy addresses how you deal with members on your site who repeatedly infringe on the copyright of others.
The Claim Process
4. The DMCA Agent receives an email from Tom Example claiming a copyright violation. The agent determines if the notice includes all the required information called out in the DMCA Policy. If it does, the Agent removes the content from public viewing. The Agent does not delete the contested material as the content may go back up on the site in the future.
5. The DMCA Agent now sends an email to the alleged infringer telling them of the claim.
6. The allegedly infringing member then has the option of sending a counter-notice to the DMCA Agent. If this occurs, the Agent must immediately send a copy of it to Tom Example who made the claim. The Agent must then republish the content no earlier than ten days and no later than 14 days after sending the counter-notice to Tom unless he sends notice that he is filing a lawsuit against the infringing member. If the agent receives a lawsuit notice, the content should be permanently deleted. At this point, the member and copyright holder have at it in court, but the site is not included in the litigation.
7. What if the infringer doesn’t file a counter-claim? The DMCA Agent must sit tight. The copyright owner may serve a subpoena asking for all identifying information the site has for the allegedly infringing member. If this occurs, the site must produce any information it has in response to the subpoena. The purpose of this provision is to give the copyright holder sufficient information to go ahead and file a copyright infringement lawsuit against the member in question.
8. Regardless of the outcome, the DMCA Agent should add the accused member to a list of people considered repeat infringers. The Agent should then determine if the new claim should result in the termination of their account per the repeat infringer policy of the site.
Are we having fun yet?
As you can see, the DMCA process is a bit technical. Most larger sites will designate one employee as the DMCA Agent. This person will then be trained by the lawyer for the site to handle the claims that come in. For example, Facebook and YouTube have a number of employees that do nothing but handle these claims. Their life must be one of pure joy!
What about smaller sites? Most smaller sites can’t afford to have an employee handle their DMCA complaint claims. Instead, one of the owners will take on the task, or the site will have their lawyer act as the Agent. There are disadvantages to each approach as the owner can either become disillusioned dealing with complaints personally or with paying their attorney to do it! Unfortunately, the DMCA is something that any site allowing user-generated content must comply with for its long term health. Without this law, sites like YouTube and Facebook would not exist.
The purpose of this article is to give you a feel for how the DMCA process works. It is not the end all on the subject. The step-by-step process requires a more detailed approach, but you should now have a general idea of the process and why so many people complain about the DMCA.
Richard A. Chapo, Esq.