DMCA Disarray! Comply with Evolving Online Copyright Law

Thursday, August 30, 2018

Since the dawn of the Digital Millennium Copyright Act (“DMCA”) twenty years ago, Online Service Providers (“OSPs”) and copyright owners have found themselves at odds. The complicated framework, intended to foster the growth of the then-fledgling Internet, shields OSPs from copyright infringement liability if they comply with the law’s requirements (aka “safe harbor”). Its aim in 1998 was to bring copyright law to the Internet era. Copyright owners argue the now two-decades-old law has left copyright law in “disarray,” creating different standards for the real world and the world of the web.

Now at the center of this debate is a pornography studio, Ventura Content Ltd. (“Ventura”), and a pornographic website, Motherless, Inc. (“Motherless”). Ventura claims the DMCA should not shield Motherless from copyright infringement liability. The Ninth Circuit sided with Motherless, affirming Motherless is entitled to safe harbor under the DMCA. Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir. 2018). The question: Has the DMCA’s OSP liability shield become too broad?

On August 20, 2018, Ventura requested the U.S. Supreme Court to review the Ninth Circuit’s decision. Ventura argues that the DMCA has been “warped” to allow OSPs to write their own “I Know It When I See It” rules to comply with the DMCA’s requirements. Ventura claims these lax implementations have resulted in “two different bodies of copyright law,” a “free-pass standard” for online companies and a “traditional copyright standard” for brick and mortar businesses.

While the Supreme Court decides whether to weigh in on the DMCA in this case, OSPs and copyright owners can take precautions to protect themselves and their rights.

OSPS, such as hosts of websites that allow users to post content, must follow all DMCA requirements to be entitled to safe harbor protections from copyright infringement liability. OSPS should:

  1. Designate an “Agent” with the copyright office to receive infringement notices, and post the information on their website
  2. Create, post, and implement a “repeat infringer” policy
  3. Create internal processes and procedures to manage the notice and take-down and counter-notice procedures
  4. Expeditiously remove infringing matter once “on notice”

Creators of copyrightable content can, and should, use the DMCA take-down process to protect their copyrights. If they find unauthorized, infringing use of their copyrightable content on the Internet they should:

  1. Identify the Agent for the OSP that hosts the infringing content
  2. Send a proper and complete “Notice of Infringement,” or fill out the OSP’s applicable reporting form letter
  3. Document and report the specific URL for every single page on which the infringing work appears
  4. Take screenshots of the infringing material before sending the Notice, in case evidence of infringement is needed later

Creators of non-infringing content that is removed by an OSP pursuant to an erroneous Notice of Infringement should follow the DMCA’s “Counter-Notice” procedure.

An experienced copyright attorney can help businesses effectively navigate the DMCA to insure proper compliance with this complicated and evolving area of law.