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The Digital Millennium Copyright Act: The Art of Digital Warfare

When one enters a search query into the search engine of one’s choice, a number of results populate the screen. This happens millions of times a day in this country. But what happens when the search results lead you to a website that is using or has posted your company’s copyrighted material, whether it be written content, photographs, artwork, or the like? Such materials are often in the form of digital files, which are readily copied and transferred across the Internet. Often, the owners of such infringing websites are seemingly unidentifiable, making any direct legal action impossible. As a copyright owner, what are your options to combat this growing trend of online renegades?

One’s initial reaction is to pursue the party most identified with the situation - the internet service provider (ISP). But can an ISP, such as Google, AT&T or Yahoo!, be held responsible for all content hosted on its servers? Is an ISP required to police all content it makes available to its users? The Digital Millennium Copyright Act (DMCA), enacted in 1998, provides some guidance for copyright owners in this area and outlines the extent to which an ISP can, or cannot, be held liable for infringing material found through its hosting site.

The first step in such an instance is for the copyright owner to determine whether the accused content is stored on the ISP’s system. If the ISP does not store the infringing material on its website, then it will generally not be held liable for the content and the DMCA would not require the ISP to take any policing action against the accused material. It may still be possible, however, to determine the identity of the anonymous accused party by filing a subpoena against the ISP in federal court demanding that it reveal the owner of the accused material. Whether they intend to or not, Internet users leave electronic finger prints every time they go online. Therefore, even if the ISP doesn’t have the name or telephone number of the accused party, the ISP should be able to identify some ultimate source and provide some sort of contact information.

The response deadline to such a subpoena can be as short as 7 days, and can be an effective tool in learning the identity of the alleged infringer. Moreover, this quick response requirement sometimes prevents the offending party from learning that the ISP has even been subpoenaed for his or her identity and then attempting to quash the subpoena to block the ISP from revealing his or her identity. Our experience has been, though, that out of fear of liability to the accused party, the ISP will often provide notice to the accused party, allowing them an opportunity intervene and possibly move to quash the subpoena. Judges are also sometimes reluctant to issue a subpoena in these instances, believing that such subpoenas are often used heavy-handedly to restrict and silence free speech or self-expression. In cases where the infringing material is clearly being used in a derogatory or improper manner, however, a subpoena may not only be the best option, but the only practical option as well.

On the other hand, if the accused material does indeed reside on the ISP’s system, then an element of responsibility arises and the DMCA requires an ISP to establish its own mechanism for receiving and processing copyright infringement claims from the public. This mechanism allows the copyright owner to send a written notification to the ISP claiming that copyright infringement is occurring on a site it hosts. The notification must state at least the following:

  • Identification of the copyrighted work that is claimed to have been infringed;
  • Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled;
  • Information reasonably sufficient to permit the ISP to locate the material; and
  • a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

Such a claim does not alone, however, resolve the matter entirely. In response to this notification, the ISP will deny public access to the accused material and notify and allow the alleged infringer the opportunity to file a “counter notification” with the ISP, stating his or her belief that the material was removed or disabled as a result of mistake or misidentification. If such a valid “counter notification” is sent to the ISP, the ISP must provide the original complainant with a copy of the counter notification and inform the complainant that the accused material will be replaced or access to it restored in 10 business days. The ISP must then restore public access to the accused material once the 10-day period passes. The only option left to the complainant to prevent this eventuality at that point is to initiate legal action to restrain the ISP and push to learn the identity of the respondent.

The details of what constitutes an “internet service provider” under the DMCA or whether an ISP’s complaint mechanism qualifies it for protection under these DMCA “safe harbor” provisions are complicated legal questions that require specific legal analysis relevant to the infringement claim itself. The category of ISPs is much broader than one would think. What is clear, however, is that the DMCA provides a mechanism allowing an ISP to remove itself from the role of Internet policeman and to claim neutrality and innocence – leaving the boxing gloves to be donned by the parties.

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