In 1998, Congress passed the Digital Millennium Copyright Act, which includes a variety of provisions to address intellectual property concerns including things like digital material and the Internet. In addition, the DMCA updated U.S. law to implement two World Intellectual Property Organization treaties from 1996. The DMCA strengthens penalties for digital piracy, including criminal penalties for tampering with anti-piracy measures in software. The manufacture of software or devices to circumvent copyright protection measures is also prohibited. There are several exceptions to these penalties, including law enforcement, libraries, and educational institutions, as well as a temporary exception for copying data while repairing your computer. Although it includes these new penalties, Title 1 of the DMCA specifies that there are no changes to the existing copyright infringement rights, remedies, or defenses. The DMCA also exempts foreign copyright holders from the U.S. law that requires copyrights to be registered with the U.S. Copyright Office before an infringement lawsuit can be filed. Stone Law can help you navigate the DMCA’s technological provisions and penalties and protect your rights.
The DMCA makes a special provision for internet service providers that absolves them of copyright infringement liability provided they follow specified guidelines. ISPs can avoid liability if they follow the Act’s guidelines. One requirement is that ISPs block access to any infringing material after they receive notice of an infringement claim from a copyright holder. Additionally, ISPs are required to implement a policy for terminating repeat infringers. ISPs can neither benefit directly from infringement nor have knowledge that would make infringement apparent. Once they are notified of infringing material, ISPs must remove the offending material promptly. If they comply with the DMCA, ISPs are immune from monetary damages, but may be ordered by a court to take action, including blocking infringing content. Not only do ISPs benefit by avoiding liability, but also the notification system allows them to rely on others to determine whether material is infringing. It can be unclear whether material infringes on a copyright, and the DMCA allows ISPs to avoid making that complex decision. Copyright holders are also given the right to subpoena ISPs for the identification of copyright infringers. If you believe your copyright has been infringed upon by someone, Stone Law’s experienced intellectual property attorneys can help you subpoena the necessary records to determine the best way to protect your rights.
While copyright holders can benefit from the DMCA, there are several requirements for the notice they give to ISPs to be adequate. If you believe that information online infringes on your copyright, Stone Law can help you draft and send notification to have it removed. A copyright holder’s notification to an ISP must include:
- A signature of an authorized agent of the copyright holder
- Identification of the copyrighted work(s)
- Information on the infringing materials or activity and how the ISP can locate it.
- Contact information for the party alleging infringement
- A good faith statement that the material is not authorized by the copyright holder, an agent, or the law.
- A statement that the information in the notification is accurate and the party filing it is authorized to do so under penalty of perjury.
Adequate notice is required before an ISP can take action to remove infringing content. It can be difficult to compile the notice required before an ISP can remove infringing content. In order to ensure that removal is not delayed, Stone Law can help you prepare and send adequate notice to an ISP.
If you believe your content has been unnecessarily taken down by an ISP, you can file a counter-notice, stating a good faith belief the material should not have been taken down. Stone Law can help you prepare an adequate counter-notice and navigate any following lawsuit.
The DMCA is part of the body of digital copyright law that is still developing, and, as a result, the rights and remedies available to you can be confusing. Contact us for help if you have concerns about your rights as a copyright holder or if you believe your content has been mistakenly removed.