If you’ve ever asked Google a copyright or trademark related query, you’ve probably come across the acronym “DMCA”.  But what is the DMCA exactly?  And when can you use the DMCA? In this article we’ll explore how the DMCA came to be, how it works, and how it can help you.

TL;DR

• The DMCA (Digital Millennium Copyright Act) was enacted in response to the changing landscape of digital material.
• It’s an American piece of legislation which only applies to US based ISPs.
• The introduction of the DMCA notice and takedown procedure empowers copyright holders to have infringing content removed.
• The DMCA can only be used in instances of a copyright infringement and in terms of the principle of Fair Use.
• A DMCA takedown service is a useful means to ensure the correct application of the DMCA process on your behalf.
  

What is the DMCA?

The Digital Millennium Copyright Act (DMCA) is a United States piece of legislation which came into effect in 1998 during Bill Clinton’s term.  Enacted in a time when the landscape of digital material was radically changing, the DMCA was intended to introduce updated copyright laws to manage the special challenges faced in regulating digital material. Importantly, the DMCA only applies to copyright infringement and not trademark infringements.

What does the DMCA actually do?

Simply put, the DMCA protects creative works on the internet whilst affording specific protection to copyright owners and internet providers. Furthermore, the DMCA provides the legal framework for the management of rights in digital works. Digital works include: articles, photographs, videos, and website content.

Does the DMCA apply to content not hosted in the USA?

Whilst, it is only enforceable against United States hosted content, the DMCA is in compliance with the World Intellectual Property Organization (WIPO) Copyright Treaty, as well as the WIPO Performances and Phonograms Treaty.  These treaties provide an international framework for the management and protection of copyright.  More than half of the WIPO member states are contracting parties to these treaties, and have committed to adopt necessary measures to ensure the application of the treaties in their national law.  It’s therefore possible that an internet service provider (ISP) based in a WIPO contracting state, might still respect the DMCA and it’s processes.

How to use the DMCA

DMCA notice procedure and safe harbour provisions

One of the most helpful features of the DMCA is the introduction of the notice and takedown procedure.  The notice and takedown procedures allow a copyright owner to send a notice to the ISP who is hosting the stolen content, informing the ISP of the stolen content. Before attempting a DMCA notice and takedown, copyright owners must familiarise themselves with the DMCA and what to include in a DMCA takedown notice. Provided the notice fulfils the requisite criteria, the ISP is legally required to take the infringing content down. The content owner is therefore able to have infringing content removed from the internet without necessarily dealing directly with the infringer.

A second important feature of the DMCA is what’s called, the “safe harbour provisions”. These provisions exempt compliant, United States based ISPs and their intermediaries of any liability (whether direct or indirect) for hosting copyright infringements or violations on their network. Therefore encouraging ISPs to obey a DMCA notice and remove infringing content. However in order to qualify for this protection, ISPs must: (i) fall within a listed category set out in the DMCA, (ii) have no previous knowledge of the infringing content, and (iii) have no direct role in posting the content.

It should be noted that alleged content thieves are afforded an opportunity to respond to a claim of copyright infringement by providing a counter notice. The counter notice must indicate that no infringement exists, and will be sent to the copyright owner. The copyright owner then has 14 days to file a lawsuit, or the ISP should put the removed content back in its place.

We often get asked how long it takes for a DMCA notice to take effect.  The answer: it depends.

There is no set time limit provided for in the DMCA and average times can vary depending on the ISP.  That said, we manage to resolve most of our cases within about 72 hours. Providing the ISP with the necessary information and positioning it correctly will help strengthen the case, which will improve the speed and likelihood of getting the offending content taken down. If you would like to avoid the time consuming and tedious process, we recommend using a takedown service such as the PhishFort Legal Takedown to handle it for you.  

However, before getting too excited about using the DMCA to combat so-called copyright thieves, it’s important to keep in mind what the DMCA doesn’t cover.

When the DMCA doesn’t apply

Firstly, the DMCA only applies to copyright infringements and NOT trademark infringements. If you need some assistance in determining whether you’re dealing with the correct type of infringement, we’ve written a blog to help explain the difference between copyright vs trademark infringements.

Secondly, the DMCA also can’t be used to: push competitors out of the market, halt freedom of speech, or avoid a more tedious but correct legal process. It’s also imperative to take into consideration the principle of “Fair Use” before embarking on the DMCA takedown process.

“What is Fair Use?” You may ask. According to the Fair Use principle, copying someone’s copyrighted work is allowed when in line with the following factors:

1. The purpose and character of the use:  Does the infringer add new expression or meaning to the original work? If so, then the work is not a complete replica of the original.
2. The nature of the copyrighted material:  Is the original material primarily factual?  If so, then copying is likely to be allowed.
3. The amount and substantiality of the copied portion:  Did the infringer borrow a large portion of the original work?  Or did the portion copied go to the heart of the original work?  If not, then the copy will most likely be allowed.
4. The effect of the copied work on the value or market of the original:  Does the copied work impact the copyright owner’s ability to profit from the original?  If not, then the copied work may be allowed.
   

Improperly or fraudulently requesting a DMCA takedown without first correctly considering the legitimacy of the claim or applying the principle of Fair Use, could result in legal action being taken against you. Penalties for abusing the notice and takedown procedure are set out in section 512(f) of the DMCA, and include actual damages and all attorney’s fees. We’d therefore recommend either seeking legal counsel or using a DMCA takedown service to assess your claim and act on your behalf.

DMCA Takedown Service

Protecting your content from thieves is difficult, and once it has been copied it can be incredibly time consuming and stressful to have the infringing content removed.  At PhishFort we offer both a copyright monitoring service to protect your content and a takedown service to assist you in having infringing content removed.

Reach out to us if you’d like to know more about how our DMCA Badge and IP infringement takedowns can help you.

*PhishFort is not a law firm and does not purport to offer legal advice of any kind. The content in this article is for information purposes only. Please seek legal counsel if you are uncertain about protecting and enforcing any trademarks and/or copyrights relating to you*