by Robert Kleinman, Attorney
an Austin Trademark Lawyer

The Digital Millennium Copyright Act (lawyers call it the DMCA) updates U.S. Copyright law for the digital age. The DMCA has several components.

Circumvention of Copyright Protection Technology

The DMCA prohibits persons from circumventing electronic copyright protection systems. In other words, persons may not descramble or decrypt a copyrighted work, nor may they bypass, remove, deactivate or impair a technological measure intended to protect the work. So, a content thief who steals a password to gain access to protected material would violate the act. And the circumvention provision even goes farther-it prohibits the manufacture or sale of technology that is primarily designed to circumvent copyright protection technology. This is good news for copyright owners and for companies who develop and implement copyright protection technologies-and bad news for hackers and content thieves. This provision carries steep civil and criminal penalties.

A minor provision of the DMCA prohibits tampering with copyright management information. Copyright management information is essentially any information which identifies the owner of a particular work, or the terms and condition of use of the work.

Liability Protection for Online Service Providers

The DMCA brings good news to online service providers. The DMCA shields online service providers from civil and criminal liability for copyright infringement under some circumstances. These protections for service providers are limited, and are annoyingly complex.

An online service provider cannot be found liable for infringement if the provider is simply transmitting or routing unmodified information at someone else’s direction through an automatic process. In other words, if a service provider’s system receives a request from an end user to receive copyrighted content, the service provider is not guilty of copyright infringement merely because it transmits our routes the content to the end user.

An online service provider cannot be found liable for infringement if the provider is simply temporarily caching or storing copyrighted content and the material is made available online to the public, the material is transmitted at the direction of a third party, and the material is stored through an automatic technical process. Thus, a service provider may, without fear of infringement liability, cache a popular web page, for example, so that multiple users may benefit from faster access to the material.

Under some circumstances, an online service provider is immune from infringement liability merely because it refers or links users to an online location that provides infringing information or because one of its users stores infringing information on its system. The service provider must demonstrate, however, that it did not know and had no reason to know about the infringing activity, and that it moved quickly to disable access to the infringing material by use of the “take down” procedures.

The Notification of Infringement and “Take Down” Procedures

When a copyright holder discovers that its content appears on the Internet without proper authorization, the holder may take advantage of the DMCA’s Notification of Infringement and “Take Down” procedures to have the content removed. The notification and “take down” provisions of the DMCA govern the process of notification by copyright holders, and the rights and responsibilities of online service providers once they receive notice of infringing material.

The notification and take down procedures are good news for copyright owners. The procedures aid copyright owners by providing a well-defined set of procedures for removing valuable copyrighted content from unauthorized use. Furthermore, the DMCA gives copyright owners the right to obtain a subpoena that directs an online service provider to provide identifying information regarding an alleged copyright infringer.

Online service providers benefit from the notification and take down procedures as well: if a provider follows the notice and take down procedures carefully-and in good faith-the providers are protected from liability for removing or blocking access to material that later turns out to be unprotectible.

Online service providers, however, must follow specific procedures; service providers may enjoy liability protection only if they designate an agent to receive DMCA infringement notices. The U.S. Copyright Office maintains a list of agents on its website-thousands of service providers have registered, and their contact information appears on the website.

U.S. Copyright Office’s Online List of Designated Agents to Receive Infringement Notices:

So how does a notification and take down work? Assume a copyright owner discovers its content on an unauthorized website. The various parties must follow the following complicated notice and counter-notice scheme:

1. The copyright owner must contact the online service provider’s designated agent to receive DMCA infringement notices. The notice must meet the following requirements:
· The notice must be written
· The notice must contain the signature of a properly authorized person
· The notice must identify adequately the copyrighted work
· The notice must contain information sufficient to allow the service provider to contact the complaining party
· The notice must contain a statement that the complaining party has a good faith belief that the material is unauthorized
· The notice must contain a statement that information is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

2. Upon receiving the notice, if the service provider removes the allegedly infringing content, then the provider is exempt from copyright infringement claims for displaying the content the content and is exempt from claims based on having taken down the material.

3. The service provider, however, must notify the subscriber (the alleged infringer who is posting the copyrighted material) that the material has been removed or blocked.

4. A subscriber that feels his or her material is not infringing then may file a “counter-notice” to respond to the notice and take down. The counter-notice must meet the following requirements:
· The counter-notice must be written
· The counter-notice must contain the signature of a properly authorized person.
· The counter-notice must adequately identify material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
· The counter-notice must contain a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
· The counter-notice must contain the subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the subscriber’s address is located.

5. The copyright holder, upon receiving the subscriber’s counter-notice, must bring a copyright infringement lawsuit, or the service provider is obligated to restore the removed or disabled material.

Sample Documents: Sample DMCA Copyright Infringement Notice to Service Provider Sample DMCA Counter-Notice

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