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Tuesday, February 17, 2009

Take Down That Image

It’s a good idea to get some perspective before you issue a threatening DMCA takedown notice

This Article Features Photo Zoom

Figure 1: The College Baseball Blog. Suppose you had an image that once appeared without permission on a blog. If it happens to you, a reasonable and rational response will yield the best results.
We’ve just seen an extraordinary election year, where even relatively innocuous issues such as the Digital Millennium Copyright Act’s takedown provision was cast into the limelight. The Digital Millennium Copyright Act of 1998 (DMCA) introduced a number of significant changes to the Copyright Act. One of those changes was the creation of a safe harbor—effectively, a limited immunity—for online providers who might otherwise face liability for copyright infringement caused by the online provider’s customers. This safe harbor is codified in Section 512 of the U.S. Copyright Law (17 U.S.C. §512).

How The Safe Harbor Works
In order to qualify for the safe harbor, an online provider must identify and register an agent to accept notices of instances of infringement. Once the agent receives notice of an instance of infringement appearing on the online provider’s system, the online provider is obligated to take reasonable steps to take down the allegedly infringing material (the safe harbor also protects the online provider from liability for claims from its customer for taking down allegedly infringing material). The online provider also is required to notify its customer of the claim of infringement.

If the online provider’s customer disagrees with the claim of infringement, the customer may issue a counter-notice pursuant to the DMCA. In the counter-notice, the online provider’s customer must state, under penalty of perjury, that the customer has a “good faith belief that the material was removed or disabled as a result of mistake or misidentification.” Upon receipt of a counter-notice, the online provider must provide the copyright owner with a copy of the customer’s counter-notice.

The customer’s sending of a counter-notice effectively ups the ante. Once the counter-notice has been sent, the copyright owner is presented with a choice: either file a court action to enjoin the customer from using the allegedly infringing material or let the online provider restore access to the allegedly infringing material. If no court action is filed, the online provider must restore access to the allegedly infringing material after a period of 10 to 14 days.

“10 Days Can Be A Lifetime In A Political Campaign”

On October 13, 2008, Trevor Potter, General Counsel for the McCain-Palin campaign, sent an open letter to YouTube addressing the campaign’s concerns that false allegations of copyright infringement—essentially false DMCA takedown notices—resulted in YouTube’s removal of campaign-related videos from its website. When addressing the counter-notice, the letter suggested that the DMCA’s 10- to 14-day period was too long. According to Potter, “10 days can be a lifetime in a political campaign, and there is no justification for depriving the American people of access to important and timely campaign videos during that period.”

Potter ultimately suggested that YouTube perform its own legal analysis, “including a fair-use analysis, to determine whether the infringement claim has substantial merit.” Unfortunately for Potter and the campaign, the DMCA’s safe harbor was designed in such a way to leave the legal analysis to the real players—the copyright owner and the online provider’s customer allegedly engaging in the infringement—and to the court system.


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