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.
The 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 Protection
The 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 Harbor
To 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.
Meeting the second requirement is typically not an issue for service providers. However, the first requirement regarding repeat infringer policies is currently a hot topic in copyright law. Courts have held that a service provider must:
- 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
For example, the court in Capitol Records, LLC v. Escape Media Group, Inc. held that a service provider, Escape, did not properly implement a repeat infringer policy. Escape listed a one-strike policy for terminating service access on its website, but failed to enforce the policy. It did not keep records of instances of infringement, so monitoring whether a subscriber was a repeat infringer was virtually impossible.
This example highlights the importance of keeping records and actually enforcing a repeat infringer policy.
Complaint Process for Copyright Owners
A 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
NOTE: If you are a copyright owner and have found infringing material on MaxCDN’s network, please visit the DMCA section of our legal page for more information.
Service Provider’s Response to Complaint
If 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.
It’s important to remember that the service provider’s limited liability hinges on the fact that it is eligible for the safe harbor provision mentioned above.
Rights of Subscriber
The subscriber, or the person/business that uploads the content to the network, has the opportunity to respond to the notice and takedown by filing a counter notification. By filing a counter notification, the subscriber acknowledges under penalty of perjury that the material was removed or disabled through mistake or misidentification.
If the subscriber serves a counter notification complying with statutory requirements, the service provider must put the material back up within 10-14 business days of receiving the notification.
If the copyright owner files an action seeking a court order against the subscriber then the service provider does not put the content back up on the network.
Copyright infringement can bring hefty consequences. The good news for service providers is that the safe harbor provision of the DMCA provides an effective way to avoid liability for copyright infringing content that their subscribers post online. Meanwhile, copyright owners have an efficient process that protects their rights.
Service providers should ensure that they provide information about the DMCA complaint process, respond to complaints, and immediately block copyright infringing content from their networks. Service providers should also ensure that they have a repeat infringer policy and maintain records of instances of copyright infringement.
If they follow these procedures, service providers avoid the headache of policing their networks for copyright infringement, without facing the risk of legal and financial consequences.