If you have a website, you’re likely familiar with DMCA. Even if you just use the Internet, you probably know about it, whether you realize it or not. But what is DMCA? To answer this question, we need to start with its origins.
Origin of DMCA
Notices for content removal issued by Google and Youtube are ubiquitous these days. If you run an online service, or you frequently blog or post videos, you may have even received a DMCA takedown notice yourself, informing you that your content infringed upon somebody else’s copyright.
But what is DMCA exactly? First off, it would be grossly remiss not to note that DMCA is more than just about taking down copyrighted content. It’s also about protecting copyright protection technologies, or DRM (short for “digital rights management”). But more on that in a bit.
Digital Millennium Copyright Act
The Digital Millennium Copyright Act, or DMCA, was the United States’ 1998 answer to a 1996 agreement between what was then 50 nations. Unified under the auspices of the World Intellectual Property Organization (WIPO), an arm of the United Nations, these 50 nations were concerned with the potential for widespread copyright infringements driven mostly by the growing capabilities of the Internet. In short, they wanted a way to regulate digital material.
Leading the charge was Hollywood. Filmmakers wanted a way to legally lockdown their product and safeguard their revenues. Sure, they could implement measures to protect their product themselves. In fact, they did. Taking a page from the video game industry, in 1996 DRM systems, notably CSS (the content scramble system), were being employed to encrypt DVD content. However, they also knew that the dawning of an age of connected, intelligent users meant challenges in keeping pace with methods of circumnavigating DRM.
The outcome of the 1996 WIPO agreement was the ratification of two treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Known together as the “Internet Treaties,” their sum effect was an agreement that would supplement existing WIPO treaties by extending them to the digital landscape. Furthermore, they mandated that each nation establish legal measures to prevent DRM circumvention, and prevent tampering of copyright information. This second measure refers to the alteration or deletion of any copyright information that accompanies the content, such as conditions for its use.
To implement the provisions of the WIPO Internet Treaties, U.S. lawmakers assembled a consortium of content publishers, civil rights leaders, computer scientists, and other pertinent interest groups. While their needs and desires frequently clashed, under the guidance of the Internet Treaties, they eventually came to a compromise. The DMCA was written into law by President Bill Clinton on October 28, 1998.
OSP safe harbor
In addition to extending the reach of copyright law to digital services, and criminalizing attempts to “hack” DRM, the DMCA includes a provision designed to protect online service providers (OSPs) from copyright infringement liability. That includes entities like search engines, blog-hosting sites, and video and social-networking platforms. Such liability protection is termed “safe harbor” in the legal community.
As it turns out, the inclusion of a safe harbor proviso was a shrewd move. OSPs like Google, Twitter, Facebook, Youtube, Flickr, WordPress, and Foursquare allow users to easily publish and share content and information. Imagine a world in which such innovative companies were constantly being dragged into court over copyright issues? Then imagine the difficulty of screening each-and-every piece of content. The legal and logistical burden would have derailed innovation, and even stalled the economy. E-commerce behemoths like Amazon and Ebay likewise benefit profoundly from liability protection.
In order to maintain DMCA safe harbor, there are few basic conditions that an OSP needs to meet, however. First and foremost, they need to make it abundantly easy for copyright holders to report infringements, which they do through what is known as a “takedown notice.” This includes designating a DMCA agent to process takedown notices, and registering that agent with the U.S. Copyright Office. The Copyright Office maintains a directory of agents for every registered OSP, which includes contact information. OSPs are required to list that same information on their site. Along with it, they must post a statement detailing their copyright infringement policy.
Of course, the OSP also has to take action to correct cases of copyright infringement. In the case of DMCA liability protection, that is defined as “expeditious removal” following the receipt of a takedown notice. Curiously, the DMCA doesn’t explicitly explain what “expeditious” entails exactly, and there have been relatively few legal cases in which an OSP’s “expeditiousness” was called into question. But usually, most OSPs make it a point to comply within 48-72 hours.
Once the OSP has executed the removal, the party responsible for posting the infringing content must be notified. That affords them the chance to file a “counter-notice.” In the event of a counter-notice, the OSP is then legally required to deliver a copy of the counter-notice to the claimant. Should the claimant not file a suit within 10 business days, the OSP must restore the previously removed material.
On top of following all of the logistical procedures, the OSP must be “in the dark” about the offending content in order to maintain safe harbor. When it comes to remaining naive of any wrongdoing, the absence of a content screening procedure is actually a tactical advantage. For example, if a company like Instagram screened every photo or video posted, they would expose themselves to legal claims that they should have been aware that the posted content violated copyright law. As it stands, proving that an OSP is knowingly aware of offending content is extraordinarily difficult in a U.S. court of law.
It also probably goes without saying the OSP can’t actually be earning money from any content that infringes upon copyright. During Viacom’s now infamous 2010 lawsuit filed against YouTube, they alleged that the video platform provider had lost their right to safe harbor in part because Google, which had acquired YouTube in 2006, purposefully laxed their compliance standards to profit from illegal downloads. The two parties settled in 2014.
Should all of these conditions be met, an OSP can legally claim safe harbor from prosecution under the DMCA. Otherwise, they open themselves up to a lawsuit. But legally, how far does the DMCA really reach?
Yes, the creation of the DMCA was the result of a treaty between the international community. But it’s a U.S. law. Ergo, online service providers located outside of the United States are not obligated to adhere to its statutes.
U.S. OSPs that host their platforms on offshore servers are, however, bound by the DMCA. In such cases, takedown notices may be tricky, since the offshore hosting company is not itself legally bound comply with the DMCA. And so, a U.S.-based OSP could refuse a takedown notice, and knowing that U.S. authorities could not then force the offshore host to remove the content. However, under the cloud of the DMCA, the OSP is still open to lawsuits for not complying with a takedown request. Thus, there could be serious financial ramifications for not complying. Also, the DMCA was the result of an international accord. As such, many other nations have similar laws in place to protect copyrighted material.
As far as whose content is protected by the DMCA, it extends to both U.S. citizens and content owned by the citizens of the various WIPO members. Why? Because within the agreed upon provisions of the Internet Treaties, there is language stating that intellectual property protections granted by a nation must be the same for both domestic and non-domestic works. While there were originally only 50 countries protected under the treaties, today there are 188. This includes 186 of the 193 U.N. Members … All protected by the DMCA.
In terms of type of content protected, DMCA provisions apply strictly to the unauthorized use of works, including reproduction and/or distribution of the exact work, or unmistakably derivative works. In a nutshell, anything under the umbrella of copyright infringement. DMCA does not cover trademarks, defamation, or trade secrets, or any number of a slew of similar legal battlegrounds. As such, OSPs also cannot claim DMCA “safe harbor” against liability when up against such charges.
On the flipside, the DMCA does offer provisions sanctifying “fair use.” Broadly speaking, fair use is the application of copyrighted material in a very limited capacity. For example, a quote from a book. Or a short movie clip. Such exceptions are necessary to the vitality of the Internet economy. The blogging and eCommerce worlds depend on them. And they help drive interactions on social media platforms like Facebook and Twitter.
Despite falling under fair use, however, many copyright holders abuse the takedown system provided by the DMCA to target and easily remove such material. This is particular commonplace among individuals or corporations seeking to expunge negative reviews. Many OSPs, not wanting to risk losing their safe-harbor protections, blindly comply with such notices, even if the content they are removing is legally protected from claims of copyright infringement. While there are legal ramifications spelled out the DMCA for lying on a takedown notice, historically such claims have been difficult to prove in court. This is because the opposition must prove that the takedown notice filer misrepresented themselves “knowingly”- i.e., the DMCA doesn’t cover negligence. Further confusing matters, it is legally unclear whether or not such a statute even applies to improperly filing notices against cases of fair use, or just filing notices for material the filer knew not to be theirs.
On a final note, the US Copyright Office holds proceedings every three years to revisit the terms of the DMCA, during which they make decisions about new exemptions. This is in part to protect against detrimental impacts to economy caused by the DMCA. During this process, it is common for organizations and special interest groups to lobby vigorously for change. While many of the DMCA changes that have come from these proceedings have historically been related to DMR (jailbreaking mobile devices, for example), abuse of the takedown system is gaining visibility. Unfortunately, that visibility might be somewhat overshadowed by a growing push within the music industry, backed by artists, songwriters, and managers, to expose the DMCA as rife with loopholes that actually permits legal piracy by providing safe harbor. It would seem a fight is on the horizon.