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Digital Millennium Copyright Act Take Down Notice

On October 28, 1998, President Bill Clinton signed HR 2281, the Digital Millennium Copyright Act (DMCA) DMCA into federal law. Title II of that law, otherwise known as the Online Copyright Infringement Liability Limitation Act (OCILLA) provides network service providers, such as internet service providers (ISPs) with a “safe harbor” to avoid conflicting suits for keeping infringing material on their network, or removing content erroneous accused of being infringing.

OCILLA contains specific procedures a copyright holder must follow to get infringing uses of their work removed under the DMCA. To gain the safe harbor provisions of the DMCA, ISPs must designate an “agent” to receive “take down notices” of infringement. If you identify an online infringing use of your copyrighted work, you can send a take down notice to the designated agent of the associated ISP to have the work removed under the DMCA. An appropriate take down notice must include:
1 A signature of the copyright owner or a person authorized to act on their behalf;
2 Identification of the copyrighted works or a representative list of such works;
3 Identification of the material that is claimed to be infringing sufficient to permit the ISP to locate the material;
4 Contact information for the complaining party (the party providing the notification letter);
5 A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6 A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed.
Under OCILLA the accused infringer has the option of providing a counter take down notice to the designated agent of the ISP if the accused infringer feels there exists a legitimate right to use the material. The counter take down notice must include:
1. A signature of the subscriber;
2. Identification of the 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;
3. 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; and
4. 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 address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided the take down notice or their agent.
Once the subscriber files a counter take down notice, the originally complaining party has fourteen days to file a copyright lawsuit in federal court. If the originally complaining party does not file a lawsuit, the ISP then puts the accused material back up.
To earn the protection of the safe harbor provisions of OCILLA and DMCA, the ISP must:

1. Not have previous knowledge the material is infringing;
2. Not have facts that make it obvious the material is infringing;
3. Remove the material “expeditiously” upon receiving a take down notice;
4. Not receive a financial benefit from AND control the infringing activity;
5. File their designated agent with (and pay the fee to) the US Copyright Office;
6. Provide their designated agent contact information on their website;
7. Implement a policy to terminate subscribers who are repeat offenders; and
8. Accommodate technical measures designed to protect copyrighted works.

Brett Trout

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