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Digital Millennium Copyright Act

August 15, 2024

This article is written by Shreya Patra. This article covers the history and background of the Digital Millennium Copyright Act, its importance in the digital age, its division into five distinct parts, the protections available under it (the takedown notice, safe harbor, counter-notice), the procedure and other formalities related to filing for seeking such protections, cases related to the Digital Millennium Copyright Act, the enforcing body of it, the proposed changes to it, and a critical view of it.

Table of Contents

Introduction

The Digital Millennium Copyright Act (DMCA), which was enacted in 1998, is an important legislation of US copyright law intended to address the changing dynamics between copyrights and the digital sphere. The Act consists of five comprehensive titles and addresses a number of issues, such as forbidding the defeat of technological safeguards, limiting online service providers’ (OSPs) liability for copyright infringement, and broadening the exemptions for copying computer programs.

Examples of how the Act actually works are Pinterest and Facebook. These websites, which are well-known for their enormous collections of pictures and videos, are not liable for any possible copyright violations that can result from user-generated content. This is due to the DMCA’s essential protections to service providers under safe harbor protections. The Act also provides acceptable ways to respond to takedown notices and the procedure for handling copyright infringement complaints.

The Act is, however, not without controversies and as a result of its widespread impact, it has prompted discussions and legal challenges all across the country. In fact, the provisions of the Act have been challenged in many significant court cases and certain new legislations are under consideration to restore the balance that some people feel has been lost as a result of this Act.

Brief background and history

The World Intellectual Property Organization manifested two accords, both of which were passed in 1996, which helped lay the groundwork for the Digital Millennium Copyright Act. The World Intellectual Property Organization observed the need to make amends to the current Copyright Act, which would accommodate the digital age, and the obstacles the internet would create if there were a lack of safeguards and preventive measures. As a result, several acts were introduced to promote its purpose.

The WIPO Performances and Phonograms Treaty was one of the pieces of legislation that was introduced and aimed to ensure the protection of sound recording and the rights of performers uniformly across all signatory countries. The final discussions of the treaty concluded in 1996, and it entered into force in 2002. It is contained under Chapter 12 of Title 17.

The Digital Millennium Copyright Act of 1998, also known as the DMCA, received assent from President Clinton on October 28th, 1998. It had merged four bills and made some additional revisions to the World Intellectual Property Organization Copyright Treaty and the U.S. laws to address the gaps in them. The most notable change that was made to it was the incorporation of new procedures in which the infringement of copyright on the online forum can be restricted. Many of these changes were not available under the World Intellectual Property Organization. It also made an exception for libraries and archives under the act itself.

The treaties were subsequently ratified in the United States, allowing several groups of people, including content creators, distributors, technology manufacturers, researchers and academicians, to avail themselves of some relief in regards to infringement on the internet, something that was neither foreseen nor addressed in the previous versions of the Act. With the introduction of such provisions, it drew supporters and critics as well, which we will be addressing in the latter part of the article.

Importance of understanding DMCA in the digital age

The Digital Millennium Copyright Act of 1998 is an important Act in the United States whose sole objective is to supervise the use and distribution of information on the internet, and with the rapid growth of the internet, it becomes important to understand it in order to protect the information that flows through the internet. The internet has had an equally positive and negative impact on our lives. One of the unfortunate effects it has had is the increased use of the internet to infringe on other owner’s interests and rights.

Copyright infringement is one such issue in connection with the negative impact of the digital age. Thus, internet service providers, publishers and creators of content must be aware of the Digital Millennium Copyright Act in order to safeguard their rights and prevent any legal repercussions that might arise from the content posted by them. It also provides them with certain protections that they can avail of to protect the content they have posted from being infringed, which we will be discussing in this article.

Division of the Digital Millennium Copyright Act

The Digital Millennium Copyright Act of 1998 contains several distinct parts that cover a wide range of subject-matters. It is divided into five distinct parts, which are as follows:

Title I

Title I is also known as the World Intellectual Property Organization Copyright and Performances and Phonograms Treaties Implementation Act of 1998, which enforces the treaties created by the World Intellectual Property Organization (WIPO). The purpose of Title I is to make certain amendments to the law in the United States. Additionally, it presents two prohibitions applicable under Title 17 of the United States Code. The changes and prohibitions are as follows:

Technical Amendments

National Eligibility

As per the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty, the member countries are required to extend their protection to specific works from nationals of member countries or other such member countries as if they were domestic works themselves, so that there is no favorability of one over the other. Under Section 104 of Title 17, one can find the nature of the kinds of works of national origin that one can obtain protection for. The Digital Millennium Copyright Act plays an important role here by amending this Section. It also incorporates new definitions for Section 101 to ensure that the protection granted under the U.S. is extended as per the requirements of the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty.

Restoration of copyright protection

Both the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty, through the term period of expiry of protection, aim to extend their protection to preexisting works from the member countries that are not available in the public domain of the origin country. This was implemented through the Uruguay Round Table Agreements Act, which created a new section known as Section 104A.

This Section extends the protection of works under Berne or other WTO member countries that already have protection in the origin country, but unfortunately, due to failure to comply with the obligations under U.S. law previously or because there was no such treaty in place, they fell into the public domain. Similarly, Section 102(c) of the Digital Millennium Copyright Act amends Section 104A to ensure that protection is granted in the same circumstances to works created under the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty’s member countries.

Registration is a prerequisite to the suit

Section 411(a) of the Act provides a requirement to initiate any lawsuit or proceeding with the copyright owner, that is, the copyright must be registered with the Copyright Office. This exempts foreign works to ensure the obligations contained under the Berne Convention are complied with. Section 102(d) amends Section 411(a) and broadens the scope of exemption to include and cover all foreign works as well. Thus, the prohibitions provided under these two treaties prevent the rights to be enjoyed or the exercise of the conditions just because the formalities have been fulfilled.

Technological protection and copyright management systems

The treaties that have been created by the World Intellectual Property Organization are identical to one another to prevent the member states from avoiding them by using unfair means to protect their works and prevent anything from being tampered with. This helps to uphold the integrity of the copyright management systems.

Circumvention of the technological protection measures

General approach

Article 11 of the World Intellectual Property Organization Copyright Treaty and Article 18 of the World Intellectual Property Organization Performances and Phonograms Treaty are identical in regard to the language they contain. Section 103 of the DMCA makes an addition by incorporating a new Chapter 12 into Title 17. This new chapter contains Section 1201, which plays an important role in creating obligations to ensure adequate and effective protection against using unfair means by the copyright owners to protect their works. It categorizes it into two types:

Prevention of unauthorized access to copyrighted work
Measures to prevent unauthorized copying of copyrighted work

No mandate

Section 1201 provides a no mandate. This no mandate extends to consumer electronics, telecommunications or computing equipment to design products as per the legal provisions. However, analog videocassette records and other such devices are required within 18 months of enactment to conform to their defined technologies, also known as macrovision.

Saving clause

Section 1201 provides two general savings clauses. The first saving clause is contained under Section 1201(c)(1), which is a notwithstanding clause that states that nothing contained under this section is to affect the rights, remedies, limitations, and defenses to copyright infringement, including fair use. The second saving clause is contained under Section 1201(c)(2), according to which nothing in Section 1201 is to enlarge or diminish the extent of the contribution of the copyright infringement.

Exceptions

The exceptions can be listed as follows:

Non-profit library, archives, and educational institutions contained under Section 1201(d)
Reverse engineering contained under Section 1201(f)
Encryption research under Section 1201(g)
Protection of minors under Section 1201(h)
Personal privacy under Section 1201(i)
Security testing under Section 1201(j)

Integrity of copyright management information

Section 1202 provides for the implementation of several obligations to ensure that the integrity of the copyright management information is upheld. Firstly, the copyright management information has to be true and accurate. There should be no concealment of facts nor should any false information be provided that would hide the infringement. Secondly, the removal or alteration of the copyright management information cannot be intentionally removed or altered without the permission of the appropriate authority.

Remedies

Any injury caused as a result of the injury under Sections 1201 and 1202 may result in a civil action in the Federal Court. This has to be read with Section 1203, which provides courts with the power to exercise different types of equitable and monetary remedies similar to those contained in the Copyright Act, like statutory damages.

A criminal offense or violation of Section 1201 or 1202, for the purpose of gaining commercial advantage or private financial gain, draws penalties. Under Section 1204, the penalties are up to $500,000 fine or up to five years imprisonment for the first offense, and for subsequent offenses, a fine of up to $1,000,000 or up to ten years imprisonment.

Title II

Title II is also known as the Online Copyright Infringement Liability Limitation Act, which is contained in Title 17 of the United States Code, Section 512. Its purpose is to restrict copyright infringement. It does so by setting limits on the liability of the service providers online with respect to the activities they are often observed to be engaged in. It introduced such a section into the Copyright Act to provide four new limitations to copyright infringement by online service providers, including the following categories:

Transitory communications

As per Section 512(a), the liability of the service producer is reduced in cases where the role of the service provider is to act as a data conduit or even to transmit any digital information from one point in the network to another at the request of a person.

System caching

The liability of the service producer is reduced in regard to the copies they have retained or any material a person other than the service provider has provided online through the provisions contained under Section 512(b). The objective of retaining a copy is to ensure that the waiting time is reduced and the bandwidth requirements are reduced by making use of the retained copy and transmitting it when there is any subsequent request, rather than obtaining access to the material from its original source. However, the material provided may be outdated as a result of such retention.

The material retained is subject to certain conditions. The material retained must not be modified, the material must be refreshed from the original source, it must not interfere with technology and must meet the requirements, it must be protected by passwords and other modes of protection that are available for the original source as well, the material must be retained as a copy, and it must be with the authorization of the person who has posted the material.

Storage of any information on the systems or on the networks at the direction of the users

Section 512(c) limits the liability of the service providers to being held responsible for any infringing material found on the website that has been hosted on their systems. In order for the limitation to be claimed, the conditions that have to be satisfied include, the service provider must not have the required knowledge of the infringing activity; the service provider must not gain any financial benefit that is directly related to the activity of infringement; and the service provider must act on the claim of infringement notification and either take down the material or access to it. The notification is given by an agent from the Copyright Office assigned to the service provider after they have filed a claim of infringement.

Information location tools

Section 512(c) talks about location tools that guide us to the material or information, some of which include hyperlinks, search engines and online directories. The liability of the service providers is reduced in relation to acts of referring or linking users to any site that contains infringing material. The material that may have been removed or blocked by misidentification or mistake is also covered under this section, as the resulting damages incurred have to be covered as long as the following criteria is met:

The provider lacks the basic level of knowledge required to know that the material is infringing.
The provider has the power to control the infringing material activity and must not receive any monetary benefit from that activity.
Subject to the notification, the provider must act in order to bring down or restrict access to that material.

General eligibility criteria for limitations

In order to claim the limitations provided under Title II, they must first qualify to fulfill the meaning of service provider as contained under Section 512(k)(1)(A). A more broad definition of service provider is given under Section 512(k)(1)(B). In addition to meeting the definition contained in the above mentioned Sections, a service provider must meet two more requirements. The service provider must adopt measures to terminate those who are repeat infringers, and they must also accommodate and not interfere with the standard technical measures.

Title III

Title III is also known as the Computer Maintenance Competition Assurance Act. The purpose of this Act is to create leeway, that is, to allow for certain exemptions that would not amount to copyright infringement. A copy of a computer program for maintenance repair or maintenance is one such exemption provided under it.

In the case of Mai Systems Corporation v. Peak Computer Inc. (1993), the defendant was involved in the maintenance and repairs of the hardware of the plaintiff’s computers. A computer that the customer had given for service would have to be loaded into the RAM and run by the defendant. The question before the District Court was whether this loading of software by the repairman would amount to the creation of a copy, which is defined under Section 101 of Title 17 of the United States Code.

The Ninth Circuit affirmed the decision of the District Court by stating that “loading and running the software into the RAM to see the error log and identify the issue would mean the representation created can be perceived or reproduced.” Hence, it amounted to copyright infringement. The Computer Maintenance Competition Assurance Act overrides this by allowing third-party organizations to use any licensed software provided to the owner of the computer or the lessee for the purpose of maintenance.

Title IV

Title IV is a collection of six different provisions. Each of these provisions addresses what the previous titles did not. These include the functioning of the Copyright Office, distance education, exemptions provided to libraries, ephemeral recordings, webcasting of sound recordings available on the Internet, and the applicability of collective bargaining for any dangers of rights in a motion picture in any bargaining agreement present under Section 108 of Title 17.

Section 112 of the Copyright Act provides an exception to ephemeral recordings that are made to facilitate transmission. Like in a radio station, a new recording containing a set of songs recorded may be broadcast instead of playing them from the original CDs. Section 402 of the Digital Millennium Copyright Act extends the exemption under Section 102 to include transmissions made under the Digital Performance Right in Sound Recordings Act of 1995. In addition to this, subject to certain circumstances, control is granted to organizations to make their ephemeral recordings.

Under Section 403, the Digital Millennium Copyright Act may provide directions to consult with the affected parties and make suggestions to Congress to improve distance education through distance technologies. Within 6 months of the enactment, the office must report to Congress about their findings.

Section 404 of the Digital Millennium Copyright Act provides an exemption to the non profit libraries and archives that are contained under Section 108 of the Copyright Act. As per the set limit, three copies can be made available to the public outside the premises of the library. It also permits the library to convert the copy to make it into a new format such that the original format becomes obsolete, like being no longer available by manufacturers or available to purchase in the market, which makes it difficult to obtain its access.

The Digital Performance Rights in Sound Recordings Act of 1995 includes three categories of transmissions under one act, the broadcast transmissions, subscription transmissions, and the on-demand transmissions. Over the years, digital transmissions of sound recordings have begun circulating. As this was not addressed under the three categories of transmissions listed above, the Digital Performance Right in Sound Recordings Act of 1995 was amended by the Digital Millennium Copyright Act to include “eligible non-subscription transmissions.”

Section 416 of the Digital Millennium Copyright Act specifically talks about the ability of the writers, directors and screen actors to obtain the remaining amount related to the movies they have worked in, but the director is unable to provide them with the pending amount. As per the agreements of the guilds’ collective bargaining, the distributor has to fulfill the obligation of the producer to make pending payments. However, some producer companies do not do this, and the guild is left without the privity of the contract, which enables them to seek recourse from the distributor.

Title 28 of the United States Code was added through the Digital Millennium Copyright Act. This act provides for the obligations on the transferees to make pending payments that the producer is required to make but the transferee assumes through the collective bargaining agreement. The obligations only become applicable if the distributor has prior knowledge or any reason to know that the movie produced is subject to the collective bargaining agreement or subject to a court order directing for an arbitration award under the collective bargaining agreement that the producer cannot satisfy within a period of ninety days.

Title V

Title V is also known as the Vessel Hull Design Protection Act. It aims to extend its protection to the design made for the hull, which is the main body of a vessel such as a ship. It is contained under Chapter 13 to Title 17.

In the case of Bonita Boats Inc. v. Thunder Craft Boats Inc. (1989), the plaintiff, who had created the design, sold it, but there was no such entry of its application under patent records. Subsequent to this, Florida banned the creation of duplicates without permission. Under this state law, the plaintiff brought the defendant to court. The Supreme Court of Florida struck down this provision. It was held that if the federal law does not provide any protection, states may not provide similar protection to patents.

Protections under DMCA

DMCA Takedown Notices

DMCA is enacted through a DMCA takedown notice. A DMCA takedown notice refers to a legal document that informs the concerned entity that material that they are linking or hosting is infringing on the sender’s copyright. The concerned entity here could be anyone- a search engine, web host, company or internet service provider. The purpose of the notice is to have the alleged infringing material taken down. Thus, the receiver should focus on doing so as soon as possible. If it is not done within a reasonable time, the concerned material or content can be removed forcibly by the respective Internet Service Provider (ISP).

Ambit of the takedown notice

The infringing material for which a takedown notice could be sent includes, among other things, poetry, artwork, songs, videos, books, pictures, music, blogs and digital software.

Applicability of the takedown notice

It is mandatory for all websites hosted in the USA to cooperate with the regulations of the DMCA. Thus, it is applicable all across the US and even a copyright owner outside of the country can issue a notice to an entity in the US. The concerned entity would then be expected to take down the alleged infringing content. However, one must check the copyright laws of the specific countries they reside in or consult industry experts in order to have better clarity regarding the legal position of the DMCA’s applicability.

Filing a takedown notice

Who can file a DMCA Takedown Notice?

Copyright owners
Content creators/owners
Content publishers or distributors (with permission of the content or copyright owners)
Social media users and participants
NFT owners
Code writers and publishers
Subject contained within the content and published without permission (special considerations may be required for the same)

Considerations before sending a takedown notice

It must be checked that the intended DMCA notice is to address copyright infringement only. This means that the notice must not be sent for material that is non-infringing despite it being owned and legally represented by someone.
One need not step back from filing a notice if a work is not registered with the U.S. Copyright Office since the same is not prohibited.
One must be satisfied that the alleged infringing work does not come within the ambit of fair use, criticism or any such exception that may permit the use of the copyrighted work.
The infringing work must also not fall within the ambit of free speech protections in order to be able to send the takedown notice.
The possibility of contacting the alleged infringer personally rather than directly sending a takedown notice could also be considered. The sender must consider this option, especially when he wants slight changes to the use or due credits to be given to his work.

Steps for filing a takedown notice

To file a takedown notice, the sender must go to the service provider’s platform and locate the DMCA link. The link would provide the instructions and the provider’s own form for submitting a DMCA takedown request. In case no such form is available, the sender may need to draft and send his own notice for sending a DMCA takedown request. Herein, if he is unable to find the contact information on the provider’s platform, the notice could also be sent through snail mail. Most importantly, the email address or other contact information could also be found on the search engine or web host. The host of the website differs from one URL to another. It could be Facebook, Bluehost, GoDaddy, etc. However, the website hosts are free from any infringement of copyright if:

The user has committed such an infringement, or
The procedure for removing the infringed material is removed after receiving the notice

If the sender is unable to figure out the identity of the company that is hosting the concerned site, he may try a DNS lookup or WHOIS search. At last, he can make use of the DMCA Designated Agent Directory available on the U.S. Copyright Office website to fulfill his purpose. On this website, contact information of the designated DMCA agent of the service provider can be easily found. In this regard, it is pertinent to note that a designated agent is someone who is sent all the takedown notices that are required to be sent to respective service providers.

Elements/information to be included in a takedown notice

Elements of the notification are provided in Section 512(c)(3) and are discussed below in detail:

Clear identification of the infringing material: This can be done using the URL of the infringing material or through other information, such as the content’s title or description.
Clear identification of the original material: This can be done using the URL of the original material or through other information, such as the content’s title.
A statement specifying that the notice is being sent in good faith: This indicates the sender’s belief that an infringement has occurred.
A statement that the information specified in the notice is correct. The notification sent must show that the information is true and accurate to the knowledge of the owner/agent 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.
Specification that the sender has the right to act on behalf of the copyright holder: This is to be done under the penalty of perjury.
Contact information of the sender, including the address, telephone number and other details of the party that has lodged the complaint of copyright infringement, would allow the service provider to contact the complainant and, if available, the email address as well.
Signature of the sender: This can be in any form, digital or physical. A physical or electronic signature of the infringed person or anyone authorized by him to act on his behalf to show that there has been some sort of infringement is also permitted.

It is very important to include all the essential elements in the notice since doing otherwise may lead to the refusal of the fulfillment of the takedown request.

Tips for filing an effective takedown notice

Only the copyright owner or the copyright owner’s representative must send a takedown notice regarding a specific infringement of a work they legally own or represent. Doing otherwise may be improper and subject to legal action.
If a concerned copyrighted work has been infringed on multiple websites, a DMCA notice is required to be sent separately for each such instance.
The DMCA notice and takedown process can be time-consuming or may cause ill will. What the sender can do in such a situation is to first monitor the use of the work in each circumstance and then send a notice for those uses that are “infringing” in nature and are most likely to cause harm.
A personalized DMCA strategy could help in having things in the sender’s favor since there is no one sure-shot formula for the same that applies to every creator. Thus, creating a strategy exclusively based on the sender’s individual resources and needs must be prioritized.

Takedown notice turnaround time

Usually, the notice takes around 72 hours. However, it could also take 24 hours or 6 months, depending on certain circumstances. Such circumstances could involve the receiver’s promptness in processing takedown requests, the copyright policy and the location of the content.

DMCA counter-notices

When a notice is sent in response to a DMCA takedown notice that is valid, it is called a DMCA Counter-Notice. It can be submitted to ISP/ OSP, i.e., the service provider, after the alleged infringing content is removed in response to a takedown notice. This means that it is only when the takedown process is complete that the counter-notice process can initiate.

The counter-notice gives a receiver the right to ask for the alleged infringing content to be put back. Therefore, the effect of the notice is that it makes the service provider place the content back, but he is required to wait for 10-14 days to do so. This is because the counter notice sender may be sued by the person alleging infringement within 14 business days. Here, it becomes pertinent to note that once the sender is sued, the content cannot be placed back by the service provider.

Filing a counter-notice

As already discussed, a counter-notice is required to be sent to the concerned service provider. Instructions for filing such a notice are usually given by the service provider when he intimates the receiver about the DMCA takedown request. Moreover, one can refer to the DMCA-designated Agent directory located on the U.S. Copyright Office website to find out where the notice is to be sent.

Responding to a takedown notice

In order to give a proper response to a takedown notice, the receiver should commence with deliberating on the following points:

Confirming whether the notice has been properly filed.
Reviewing the notice as to the correctness of the information included therein.
Confirming the correctness of the identity of the sender of the notice. It must be either the copyright owner or someone legally representing him.
Undertaking an honest assessment of the alleged infringement of the content in question and whether it infringes the copyright of another person.
Considering whether the use falls within any form of legal protection within the ambit of the copyright law.
Considering the likelihood of the user having an infringing character.
Consulting an attorney whenever it seems necessary.

It is only after deliberating on the above points that one must proceed to determine whether or not to send a counter-notice.

When to consider filing a counter-notice

Some of the instances in which the receiver may choose to send a counter-notice are as follows:

If there is any error in the takedown notice.
Use of the content falls within the ambit of “fair use” or any other copyright exception (in the firm belief of the receiver).
If the receiver believes that the takedown request has been made in error.
If he can prove that the sender is not the actual copyright owner or that the sender had no right to send the notice.
The alleged infringing material does not fall within the ambit of “copyright.” For instance, it is a slogan, idea or title.

If a counter-notice is sent despite the existence of an alleged infringement, it has the potential to invite legal action from the owner of the copyright. For instance- sending the notice in case of intentional hosting of the infringing content or sending it even when the sender is doubtful of infringing it. However, not sending the notice when it was justified to do so may leave the receiver with no legal recourse. In such a situation, the alleged infringing material remains removed and the receiver’s account may also be terminated. Another way to look at it is the requirement for hosting service providers to prohibit repeat infringers from using their services. Thus, not sending a counter-notice could be considered a “strike” against the receiver and he may not be able to access his account thereafter.

Elements to be included in a counter-notice

Elements of the counter notification are provided in Section 512(g)(3) and are discussed below in detail:

Clear identification and location of the alleged infringing material (before removal): This can be done using the URL of the infringing material or through other information, such as the content’s title or description.
A statement under the penalty of perjury: This statement is to be sent as an indicator of the sender’s “good faith belief” that the removal of the concerned material was due to a mistake or misidentification.
Signature of the sender: This can be in any form, digital or physical.
Contact information of the sender of the counter-notice

A statement of consent to jurisdiction: Usually, the consent to jurisdiction for that district’s federal court is given where the concerned notice’s sender lives. However, if the sender lives outside the US, then consent can be given for any district where his service provider lives. One may also consider consulting an attorney before sending such a statement and deciding on the final jurisdiction, as the same could have significant legal implications.
Consent of acceptance of service: This consent is given to accept the service of process from anyone who submitted the takedown notice or from the DMCA agent of the other party.

The form for the “Request to restore access to posted material” can also be accessed here. It is also important to note that there is no specific time limit for sending this notice. However, it must be sent as soon as possible or within a reasonable time.

Penalties for filing false or misleading takedown or counter-notices

Section 512(f) of the DMCA provides for the liability of any person who knowingly materially commits misrepresentation by way of takedown notice or counter-notice. This provision for penalties under DMCA has been helping to avoid the abuse of the notice takedown and counter-notification process.

As per the Section, a person who misrepresents would be liable for any damages, including costs and attorneys’ fees, incurred by:

The alleged infringer
Any copyright owner or
Copyright owner’s authorized licensee

However, the above-mentioned liability is subject to the following conditions:

Any or all of these parties have been injured by the misrepresentation
The injury is in relation to the content being removed/disabled/replaced by the service provider, relying on or in the belief of the misrepresentation

DMCA safe harbor protections

DMCA provides “safe harbor” protections to the service providers to a certain extent under Section 512. These online service providers may include user-generated content platforms, forums and email service providers. This means that they have limited liability under the Act and are protected from any copyright infringement claims as long as they maintain adherence to certain safe harbor provisions. This protection is given to them in view of the fact that these providers cannot monitor every piece of content posted by their users on their respective platforms. Moreover, it is also to incentivize their participation in the DMCA notice and takedown process and the steps they take in furtherance of the fact that they have been granted immunity from copyright infringement claims against them.

As the Act is all about copyright, the claims of trademarks, trade secrets, patent infringement or defamation are not included within the ambit of neither the liability exemption nor the takedown notices. Moreover, it must be duly confirmed by the ISPs whether or not the notice is a DMCA takedown notice since websites often receive cease-and-desist letters, which are often based on non-copyright claims.

Who is a service provider

A service provider has been defined under Section 512(k)(1) and broadly includes network services companies such as search engines, auction websites, internet service providers (ISPs), and bulletin board system operators.

The four safe harbors

The ISPs are exempt from any kind of liability in the below-mentioned situations, also known as the four safe harbors:

Storage Safe Harbor

When any kind of or anyone’s content is posted at the direction of a user, i.e., when they act as hosts for other users. This protection is, however, subject to the following three conditions:

The ISP does not have actual knowledge of the content being “infringing” in nature. The receipt of a takedown notice is deemed as proof of his knowledge.
The ISP has not received any benefit in monetary terms from the infringing activity if he is in direct control of the activity.
The ISP, upon becoming aware of the infringing nature of the content, acted promptly to disable access to or remove the content.

Transmission Safe Harbor

When transitory storage is used in conjunction with the automatic transmission of infringing content, the service provider is exempt from any liability.

Caching Safe Harbor

When service providers are engaged in creating or caching temporary copies of material for faster access in the future, they are exempt from any liability.

Search Engines or Information Location Tools Safe Harbor

When they link users via a tool including a directory, index, reference, pointer, or hypertext link to an online website or location that contains infringing content or material. That is, when user clicks any of the link, hypertext or the reference and is directed to an infringing material or content, the internet service providers is protected against the direction to the infringing material. This protection is also subject to the following three conditions:

The ISP does not have actual knowledge of the online location hosting material or content that is “infringing” in nature.
The ISP has not received any benefit in monetary terms from linking the content or material.
The ISP, upon becoming aware of the infringing nature of the content, acted promptly to disable access to or remove the content.

Other circumstances exempting liability

When the information resides on systems or networks at the discretion of users.
When any copyright infringement has been made by the users of the ISP who have an effective “notice-and-takedown” procedure. Regarding this, he must ensure that he acts quickly to remove the content and ensures that the copyright materials were never published knowingly.
If any creative work is published with the permission of its owner.
Where the infringing act was not known to him or when there were no facts or circumstances that would indicate the infringement.

Requirements for safe harbor protection

For qualifying for the DMCA safe harbor protections, ISPs can either themselves assume the role of a copyright agent to receive the takedown notices or they can designate someone else to do the same. This is required to be done through a formal procedure, in furtherance of which one needs to file an Interim Designation with the US Copyright Office. The detailed process for the same can be found here.

Another requirement is to have an effective copyright infringement policy and duly communicate it to the users. This is to be done by ISPs publishing a statement on their respective websites. The statement must also include the DMCA agent’s contact information. This information can also be included in the terms and conditions of the website. Along with this, the format concerning DMCA claims and other related information can also be specified.

With this, ISPs must also inform their account holders and subscribers about the repeat infringer policy. At last, it is to be ensured that they accommodate copyright owners’ established technical safeguards to identify and protect their work.

Limitations of DMCA safe harbor

The DMCA safe harbor protections do not protect against the following claims:

Non-copyright claims
Direct infringement by the service providers
Service providers engaging in joint infringement with users
Copyright claims under foreign law

Consequences of non-compliance

Non-compliance with the Safe Harbor provisions makes the service providers lose them as a legal defense. However, to make them liable, a copyright holder is required to prove his primary or secondary liability in the claim for copyright infringement. It is pertinent to note in this regard that other legal defenses, such as fair use, would still apply to the service provider. However, they could be subject to civil or criminal penalties if they do not remove the infringing content or material as required.

DMCA anti-circumvention measures

The DMCA’s anti-circumvention provisions under Section 1201 cover regulations that forbid utilizing digital products and/or services by bypassing technological restrictions in ways that their copyright owners have not authorized. In other words, these provisions forbid bypassing a technological barrier that restricts access to work that is protected under the Act. Moreover, attempting to get beyond technological anti-copying measures and trafficking in tools beyond effective access restrictions are expressly forbidden by the Act.

There are certain exceptions provided under the Section and every three years, the U.S. Copyright Office and Library of Congress create exemptions to the anti-circumvention provision. Some of these exceptions include exceptions for law enforcement officers and encryption researchers. The most important exception is a specific way of getting around digital locks on equipment a person owns, such as cars, tablets, etc. It is pertinent to note that violating the anti-circumvention measures does not make one liable for copyright infringement. Moreover, it is not clear as to whether the fair use defense can be used as a valid defense in cases of circumvention.

Criticisms of the DMCA

The DMCA has been criticized by various stakeholders since its enactment in 1998. Some of the widely criticized viewpoints have been discussed below in detail:

DMCA could be misused by the copyright owners

Through the use of DMCA provisions for takedown notice, copyright owners could try to have even the non-infringing content removed. This may be done for censorship or to prevent any kind of existing or potential competition, which may, in turn, affect others’ free speech rights. The receiver of such notice may concede to the removal of the content in order to save himself from the injurious consequences of any legal proceeding. Another angle of this criticism is the potential legal repercussions under the Act, which apparently does not give a fair chance of standing to both parties. As a result, anyone who has ever been a user would remain in constant fear of being alleged, sued, prosecuted or having their account suspended.

Negative effects on creativity, research and innovation

The strict provisions of the DMCA put a question mark on the creation of new services and products by different companies and/or budding entrepreneurs. The provisions could also become obstacles in the way of musicians and artists who would want to present their innovative creations to the world. Moreover, DMCA’s anti-circumvention provisions could pose difficulties for researchers and academicians to study and work on upgrading the existing technologies. All this may pose a threat to the First Amendment Freedoms. This discussion, in fact, puts the entire IPR regime to question while at the same time emphasizes its evergreen need and importance.

Restricted application of fair use doctrine

Some critics have been contending that limitations imposed by the DMCA’s anti-circumvention provisions restrict activities covered within the ambit of the fair-use doctrine. For instance, the DMCA forbids the evasion of technological protection measures (TPMs) that limit access to works protected by copyright. These anti-circumvention regulations may limit non-commercial uses that would otherwise be acceptable under fair use.

Complex requirements of safe harbor protections

Each of the four safe harbors has specific preconditions and requirements. Service providers can never be completely certain of “safe harbor” keeping them secure because many of the given requirements are disputed in practice, ambiguous, and complex. The safe harbor protections in place take on an aggressive approach to cannibalize the music industry that exists online. Additionally, it imposes the blind assumption that the online service provider is responsible for any infringing activity if they are aware of the nature of it but still fail to take any proper action, even if no formal notice has been issued to them directing them to do so.

Interference with computer intrusion laws

Over the years, DMCA could be seen as a way for some people to wrongly utilize its provisions for prohibiting computer network access, for which it is not suitable, and the manner of its use for this purpose was never intended.

Sending takedown notices could become a never-ending process

Criticism from the point of view of copyright holders is the potential of their copyright being infringed by multiple people and sending takedown notices for every infringement could become a cumbersome and ineffective process since by the time the content is removed, someone would have already earned a substantial amount of profits or benefits out of it.

Landmark cases related to DMCA

Some landmark cases relating to the DMCA are discussed as follows:

MGM Studios, Inc. v. Grokster, Ltd. (2005)

In this case, distributors were accused of copyright infringement. The petitioners contended that their software was created with the intention of allowing users to infringe on copyrighted works. The Court held the distributors liable for contributory infringement. It was put forth by the Court that despite the lawful uses of the software, there was evidence to show that its principal (if not the sole) object was to promote its use for copyright infringement. Thus, it was adjudged that distributors had knowledge of the infringement and the ability of software to do so was expressly communicated to the users. Moreover, there was no attempt by distributors to develop filtering mechanisms or tools for diminishing infringing activity and the distributors were benefiting from high-volume infringing use.

Lenz v. Universal Music Corp. (2016)

In this case, the petitioner alleged that Universal Music Publishing, Inc., Universal Music Publishing Group and Universal Music Corp., have sent her a takedown notification alleging her of copyright infringement by way of misrepresentation. The subject of the alleged infringement was use of a composition’s portion by an Artist in a video of 29 seconds by the petitioner. It was held by the court that the requirement for copyright holders under Section 512(c)(3)(A)(v) of the DMCA is to consider whether or not a material that could be potentially infringing comes within the ambit of fair use of copyright. Further, it was said that this is to be done before issuing a takedown notification to a service provider.

Capitol Records, LLC v. ReDigi Inc. (2013)

This case revolved around a digital marketplace where customers could sell lawfully obtained digital music files and purchase used digital music at a discount from what was being charged on iTunes. The respondents were found guilty of vicarious, contributory and direct infringement by the US district court for their unauthorized reproduction and distribution of sound recordings that belonged to Capitol Records. According to the Second Circuit as well, the respondents violated plaintiffs’ reproduction rights, which upheld the district court’s ruling. It was also held that the respondents are not protected by the fair use or first sale doctrine.

Viacom International Inc. v. YouTube, Inc. (2013)

In this case, the plaintiffs claimed that their rights to display, reproduction and public performance had been violated by the defendants. It was alleged that the plaintiff’s audiovisual clips were posted by the defendants on their website.

Regarding this, the court held that Section 512 of the DMCA, which provides for safe harbor protections, makes it compulsory for the alleged person to know or have information that is specifically “infringing” in nature. Further, it was put forth that the willful blindness theory, by virtue of Common Law, could be employed to demonstrate knowledge or understanding of particular DMCA infringing circumstances. At last, it was held that irrespective of there being item-specific knowledge of the infringing behavior, the ability and right to control the same lie with the service provider in accordance with Section 512(c)(1)(B).

Perfect 10, Inc. v. Amazon.com, Inc. (2007)

In this case, Google’s decision to show copyrighted photo thumbnails in search results was deemed to be “fair use.” The search engine’s transformation of the visuals into information-finding cues, in the Court’s opinion, made the program enormously transformative for society. The Court decided that market injury could not be inferred because of the user’s transformational nature and that any potential impact on the plaintiff’s market was considered hypothetical. As a result, the liability of the service providers was restricted under Section 512 of the DMCA.

Proposed changes to the DMCA 1998

Recent proposals to update DMCA

The Digital Copyright Act of 2021 (DCA) is a draft legislation aiming to make certain changes to the DMCA of 1998. The draft was released by Senator Thom Tillis a few years ago. It has been introduced, citing that the present law governing copyright is not adapted to new advancements in the technological sphere.

One of the most noteworthy revisions is the need for online service providers (OSPs) to ensure that the near complete or complete copy of copyrighted work is removed from their networks and systems. This is to be done once they receive a notification of the claimed infringement. Moreover, all this is required to be undertaken irrespective of whether the alleged infringing work is being uploaded by a single user or different users.

Another proposed change is that OSPs would be optionally required to maintain and create a counter-notice procedure. They would also be required to create a notice process as an alternative measure. This would include the creation of a process through which providers and copyright owners could enter into a voluntary agreement. Further, the proposal requires that the US Office of Copyright develop a policy termed a model repeat infringer policy, along with the minimal criteria to be followed by the service providers.

Another proposed change concerning the allegations of copyright infringement for multiple works provides that the complainant would be required to recognize those works’ representative list, which is non-exhaustive in nature, on the website. Further, there is a proposal to make some additions in the Section that talks about “misrepresentation,” which may add to OSPs’ liabilities.

Debate and criticisms over changes to the DMCA

With the notification of the proposed changes came widespread criticism. For instance, it has been put forth that DCA would have a chilling effect on the creative economy and that, presently, DMCA allows creativity to thrive. Another criticism is that the changes would lead to extensive filtering and overboarding oversight. Moreover, it has been criticized for its application of the envisioned staydown process that would involve all service providers, such as cloud service and email providers. The process has also been accused of placing a great economic burden on small online services, which could significantly threaten free speech.

Conclusion

Undoubtedly, there is a need for an Act like the DMCA for the protection of intellectual property rights, specifically the rights of copyright holders, at a time when almost everything and everyone is shifting to the digital space. However, with the evolving nature of the digital world, the Act might need certain amendments. On the other hand, there is a need to engage in discussions and debates to have a balanced approach towards preventing copyright infringement and understanding and accommodating the needs of online platforms and users. This can be done only with the firm determination of service providers to impart justice, an understanding approach from copyright owners, and a responsible and careful approach by users of the online platforms. At last, identifying potential and existing risks, exercising caution and seeking legal advice whenever necessary would remain the utmost important aspects while deciding to communicate with the other party, be it the sender, receiver or service provider.

Frequently Asked Questions (FAQs) on DMCA

Why is the Digital Millennium Copyright Act important?

The Digital Millennium Copyright Act is a part of the copyright law in place in the United States. Therefore, it becomes important to know about it because it contains all the rights, obligations and protections available for copyright under one combined law that aims to prevent any infringement on the Internet. It also makes internet service providers responsible for any infringing material found on their servers. The DMCA does so through the DMCA Takedown contained under Section 512(c)(3) of the Act.

Where is the Digital Millennium Copyright Act applicable?

The Digital Millennium Copyright Act is applicable primarily to United States law. So it is applicable in the United States only. However, there are certain countries that have accepted the Digital Millennium Copyright Act Takedown in addition to their own copyright laws, as it is not specific to the United States. In other countries, they have their own laws to deal with copyright infringement.

Do non-Digital Millennium Copyright Act websites have to comply with Digital Millennium Copyright Act order?

Yes. Any website that does not follow or states explicitly to follow the Digital Millennium Copyright Act would have to comply with a Digital Millennium Copyright Act order, which is applicable all over the United States. One can find out whether or not a website is already following the Digital Millennium Copyright Act by heading over to the footer of the website, where the same would be explicitly stated as to the Digital Millennium Copyright Act takedown procedure.

What does the Safe Harbor provision under the Digital Millennium Copyright Act not protect?

The Safe Harbor provision under the Digital Millennium Copyright Act does not provide protection against any non-copyright claims, such as infringement of trademark, any claims of copyright under foreign law, direct infringing activities of the online service provider, etc.

Can I fall under the multiple safe harbor provisions?

Yes, a service provider can fall under multiple safe harbor provisions, provided they satisfy the qualifications for the limitation on liability for those. If they satisfy the criteria, they can claim the limitation.

References

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