Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) sets clear guidelines to help people make an official complaint to a web host if they believe their intellectual property is being used in an unauthorized manner by one of the web host’s clients. If the complaint is sufficient, the web host may take action to block or terminate access to the content that is purportedly being used unlawfully. The prompt action provides legal immunity to the web host. 6
The DMCA, which became law in October of 1998, limits the liability of Internet service providers facing copyright infringement due to the actions of their customers. However, there’s one fact that many neglect to understand – the hosting company must qualify for the Act’s protection. 7 To qualify for protection the hosting company is required to designate an agent to receive infringement claims. The contact information must be listed on the web hoster’s site and at the U.S. Copyright Office.7 Compliance with the DMCA’s service provider safe harbor requires that the host be able to receive complaints and take down offending material according to published guidelines. This law is interesting, because to avoid liability for infringing user-posted, or third-party-posted content, the service provider (or host) must “expeditiously” act to remove or block access to content that users properly allege is infringing there rights. Hosts must also take action if they have actual knowledge of if infringement is clearly “apparent.” 8
Rawlson O’Neil King, who writes for Web Host Industry Review Magazine, states, “The provider must take reasonable steps to promptly notify users who post copyright-infringed materials that they have moved to block it. If a user who posted the material sends a proper “counter-notification” to the provider stating that the removal of material was due to a mistake or misidentification of the material, the provider then must provide a copy of the counter-notification to the alleged copyright owner who sent the original notice.” 8
King then goes on to state, “Unless the party claiming to own the infringing material then notifies the provider that it has filed a court action seeking to restrain the alleged infringement, the provider (or hosting company) must replace or unblock the material not less than 10 or more than 14 business days after receiving the counter-notification.” 8
Under the DMCA, hosts are compelled to perform a surveillance function. Although hosts are compelled to monitor their network, they are not “required” to monitor the network.
Issues to keep in mind:
- The Act does not require a hoster to monitor customer sites, only to take action when notified of a violation. 7
- The Act does not address complaints about trademark and trade secret complaints. 7
- “Web hosting companies are under pressure to take down sites immediately upon receiving a mere allegation of copyright infringement, even if the allegation is unjustified.” 7
Quotes
Ben Reytblat, CEO of Quadrix Solutions, stated, “DMCA was bad law the day it was signed (and) it still is.” He also stated, “We don’t think this was good law or even good policy. It went entirely too far in the direction of content companies’ interests, and did not consider adequately the legitimate concerns of technology companies or the academic communities.” 7