How the DMCA Impacts Service Providers, Copyright Owners, and Subscribers
March 16, 2016 | Alexandra Soltis
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At MaxCDN we have hundreds of servers worldwide and tens of thousands of customers. This makes it virtually impossible for us to keep tabs on every piece of content uploaded to our network, including copyrighted content. Hosting providers and websites with user-generated content can relate to this. Thankfully, a government-regulated process exists that lets service providers (such as CDNs) and subscribers (such as CDN users) go about business while protecting the rights of copyright owners. This process is outlined in the Digital Millennium Copyright Act of 1998, colloquially known as DMCA. In this post, I’ll discuss how the digital copyright impacts the three parties involved, as well as what the copyright infringement complaint and removal process looks like.
Financial ConsequencesThe copyright owner has the exclusive right to reproduce, distribute, display, or perform the protected work, or to make derivative works. Copyright infringement occurs when a subscriber or any other person uses the protected works without authorization. The penalty for copyright infringement is between $750 and $30,000 per violation. This amount is paid to the copyright owner by the party who posted the copyright-infringing content, which could include the service provider or subscriber. If the party was neither aware nor had reason to suspect that there was copyright infringement, the court has discretion to reduce the penalty to $200 per incident. However, if the copyright infringement is willful, the maximum penalty increases to $150,000 per violation. The DMCA provides a safe harbor provision that prevents liability for service providers who immediately remove copyright infringing content from their networks and meet certain other requirements.
Safe Harbor ProtectionThe safe harbor provision is intended to promote the innovation of online services while protecting the rights of copyright owners. Without such a provision, service providers would be required to monitor all content on their networks and check for copyright infringement, which simply isn’t feasible. Further, service providers would be exposed to crippling liability arising from the transmission of copyright-infringing content of which they have no knowledge. The tradeoff is that copyright owners are now forced to police the Internet to locate instances of copyright infringement. Reverse image searches like those provided by Google Image Search and TinEye make this easy (though not entirely scalable). Whether the copyright owner discovers a copyrighted work by reverse image search or a different means, the DMCA offers a way for copyright owners to file a complaint. The complaint process provides an efficient method for copyright owners to protect their rights while the safe harbor provision prevents liability for CDNs. Once the service provider receives a DMCA Complaint in proper format, they must immediately block the content from their networks. At MaxCDN, we also contact the subscriber and instruct them to delete the files from their origin.
Service Provider Eligibility for Safe HarborTo be eligible for limited liability under the safe harbor provision, you must first pass as a service provider by the DMCA. According to the DMCA, a service provider is “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” You must also meet two conditions:
- You must adopt and reasonably implement a policy of terminating the accounts of subscribers who are repeat infringers in appropriate circumstances. (In our case, this includes our customers, free trial users, and anyone else who uses MaxCDN.)
- You must not interfere with standard technical measures used to find infringing works.
- Adopt a policy that provides for the termination of service access for repeat copyright infringers
- Informs users of the service policy
- And implements the policy in a reasonable manner
Complaint Process for Copyright OwnersA service provider must promptly remove or block material once it receives notice of copyright infringement. The notice sent from the copyright owner must meet the following requirements to be considered valid:
- Signature- or electronic signature of the copyright owner or person authorized to act on their behalf.
- Identification- of the copyrighted work (URL)
- Identification- of the allegedly infringing work (URL)
- Contact information- such as address or telephone number so the service provider can contact the complaining party
- Statement of good faith- that the complaining party has a good faith belief that use of the material is not authorized by itself, its agent, or the law
- Statement of authorization to act- 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
Service Provider’s Response to ComplaintIf the service provider either 1) receives a complaint with the requirements above, 2) is aware of facts or circumstances that infringing activity is apparent, or 3) has actual knowledge, the service provider is not liable if it acts “expeditiously to remove, or disable access to, the material.”
- A complaint that does not comply with the above requirements is not taken into account in determining whether the service provider has actual knowledge. There is one exception though: If the complaint complies with requirements 2-4 above, but does not include the proper signatures, the service provider must contact the complaining party, explain that their notice is inadequate, and provide the requirements for proper notice.
- A service provider will only be considered to be aware of facts or circumstances that make infringement apparent if there is blatant copyright infringement. To determine whether copyright infringement is apparent, a court will consider the subjective awareness of the service provider, as well as whether a reasonable person would operating in similar circumstances would think infringement is apparent.
- A service provider has actual knowledge if it knows there is a specific instance of copyright infringement. This is true regardless of whether there are facts or circumstances that would otherwise make the infringement apparent.