History of the DMCA
First, I want to make a couple of not necessarily obvious points about the copyright laws in play here (my title may seem a little misleading, but I will get there, I promise. For those who don’t want the background, scroll down). The DMCA was, in part, an amendment to the already existing U.S. Code/Copyright Laws. There are two important points to understand here, as a copyright holder:
- The U.S. Supreme Court has been pretty clear in pointing out the underlying rationale for the copyright law and its Constitutional authorization is not primarily to protect the rights of individual copyright holders! That comes as a surprise to many photographers. The underlying rationale was to promote innovation and “useful arts” for the good of the public. The limited protection (depending on when the right was first created, for the life of the author plus 70 years – 50 years if before 1978) given by the copyright act is designed as an incentive to artists and inventors. As such, their rights are fairly strongly protected, but any court finding will be primarily based on “the interests of the public.” This will be seen most significantly in “fair use” cases.
- The DMCA is not a law which was enacted for holders of copyright to enforce and protect their claims. The DMCA gives ISPs “safe harbor” protection from damages claims by copyright holders, if infringing materials were unknowingly posted on their sites. The reasoning for this law is really pretty obvious. With thousands of patrons, it would be physically and economically impossible for an ISP to police whether posted materials were copyright protected and the act of posting was an infringement (this is particularly true because a copyright arises with original authorship, whether or not registered with the USPTO). The ability for copyright holders to hold the ISP responsible for the mere hosting (without knowledge of a violation) of materials subject to copyright would be onerous and could—effectively—shut them down.
A DMCA Takedown Request or Notice is not a claim for damages against the infringer
In 1998, in large part in response to the proliferation of the internet and the ease of copying others’ copyrighted material for personal use and distribution (a/k/a, theft), Congress enacted the Digital Millennium Copyright Act. The main purpose of the DCMA was to implement some World Intellectual Property Organization (WIPO) Treaties, recognizing that with the internet, we no longer were able to police within our “borders.” In a sense, the internet has become the new “frontier.” A secondary, but serious, issue the DCMA addresses is the concern that an internet service provider (“ISP”) could be held liable for copyright infringement of their patrons by merely providing the means for posting. The DCMA provides a safe-harbor for ISP’s, exempting them from liability for the actions of their patrons unless they are a knowing participant.
This latter part has created a tool for owners of IP rights. The so-called “DMCA Takedown Request” has become an offense tool, to be used when the owner discovers that their IP rights have been infringed. It works. Most of the major, legitimate providers have established user-friendly takedown request procedures that can be done on line. Last week, I took advantage of the procedures for Google for Google+ and Blogger, for Pinterest, and for WordPress. Each has responded rapidly, in the manner I had hoped and anticipated. Unfortunately, there are some other providers who have made the takedown requests more difficult (I will leave you to your own conclusions why).
In 2000, a group of music industry companies sued Napster, an online “peer to peer” file sharing network under, among other laws, the DMCA. The Federal Court found that Napster was a knowing participant in the outright theft of digital music files. It was essentially shut down (and ironically, later reincarnated as a legitimate online music store). Shortly thereafter a series of additional cases shut down Napster “look-alikes” (e.g., Grokster) in serial fashion. The cases are fascinating reading, and underscore just how unprepared Congress and the courts were for the unprecedented technology and “everyman” access the internet and digital electronic devices have brought. The beat goes on. We will likely see additional litigation in these areas in coming years.
Pinterest is a site of particular interest to photographers. On the surface, it has, to me, the “look and feel” of a Napster. But my research indicates that they have acted in good faith to make sure they are not in the same category as the Napster/Grokster setups. Both Napster and Grokster openly encouraged pirating and unpaid, unauthorized use and sharing of files. Indeed, Grokster bragged about its position as the “Napster substitute.” In their holdings, the courts found ample evidence of this intentional conduct. Pinterest, on the other hand, has responded that it does not intend for its users to infringe on the rights of owners of IP rights. And in fact, I can report that they quickly and efficiently responded to my DCMA Takedown Requests, using there online process. Of the ones I have used, theirs is the easiest and most user-friendly. And, they will take down multiple occurrences of one image (where technologically possible) with one request. The Pinterest Terms of Service (“TOS”) make it clear that you post on your “board” at your own risk that you are violating copyright or other IP rights and laws. It is also my understanding that they have released code which photo website users on sites like Flickr™, can install that blocks Pinterest users from using the “pinit” function (it is in the Flickr settings). Do all these things effectively shift liability away from them? Given the broad, safe-harbor protections of the DMCA, my answer is: probably.
And what about Facebook? Facebook has really become the standard of use on the internet. Others have tried to go head to head (Google +), but arguably, none have been successful. It is very easy to repost an image (in fact, I am guilty of it myself). My understanding (which is admittedly shallow) of the FB inter-workings is that things that were meant to have limited distribution often show up in unsuspected public areas. There is a pretty confusing labyrinth of “privacy settings” in the module. Facebook does, however, have a DMCA Takedown Request Form which appears to be functionally similar to the one Google uses, and can be filled out online. The easiest way to get to it is to type “DMCA” in the help box and then scroll down to the link and click on it. Follow the prompts from their.
A number of concerns remain. First, who reads the TOS? I would suppose it might be right around 2% of users. That may be high :-). Second, sites like Pinterest, and other possibly other “lookalikes” who are less concerned about the DMCA takedown process, still make it awfully easy to infringe. Just install the “pinit” (or similar) button to your browser and any time you see something you like, point you mouse and click “pinit.” It seems awfully easy to facilitate infringement without actively encouraging it—whether intentionally or not. I am not suggesting that that makes Pinterest, or others the “bad guy.” Rather, I am pointing out how we as owners of intellectual property rights must continue to be vigilant.
How to Make a DMCA Takedown Request
The legal grounds for this can be found in Section 512 of Title 17 of the U.S. Code (generally known as U.S. Copyright Law/Act). As noted above, the DMCA is not an act designed to directly aid the owner of the copyright in pursuing a claim against the infringer (that is found elsewhere in the code). As such it is important to understand that a DMCA Takedown Request or Notice is not a claim for damages against the infringer. That would, generally, have to be done in a lawsuit directly against the infringer.
The DMCA requires the ISP, upon notification, to “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing
What the DMCA Takedown Request procedure does is—in most instances—produce rather immediate action by the service provider. This is because section 512 protects the ISP from liability to you only if they do not have actual knowledge of the infringement. Once they receive a notice from you, they have actual notice and are required to take action. Sections 512(c)(1)(A)ii) and (c)(1)(C) require the ISP, upon notification, to “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing ….
The DMCA sets out 7 requirements for a Takedown Notice to be valid:
- There must be a written request. An email, or filling out the site’s own form will satisfy this requirement
- The request must be signed by the owner of the copyright or her designated agent. The act specifically authorizes an “electronic signature.” While there is plenty of ambiguity over what exactly constitutes an e-signature, the bulk of the law out there on it confirms that if it is intended to be a signature, it will comply. The forms on most sites require that the e-signature exactly match the name of the copyright owner or agent filled in the form
- The claimed infringed work must be identified, and generally, some form of proof of ownership or agency given. My experience with the forms indicates that most ISPs will be satisfied with a url link to your site or someplace where you have the image legitimately posted
- The claimed infringing material must be sufficiently identified so the ISP can find it, review it, and remove or disable it. If it appears on more than one place, it would be a good idea to identify each and every place (a cautious approach may be to prepare or fill out a notice for each instance). Pinterest has a checkbox authorizing them to remove every instance where it appears on their site.
- Information reasonably sufficient to permit the ISP to contact the infringer. As a practical matter, when this appears on the ISP site, in most cases, it is associated with the infringer’s own account and this is not an issue. However, this may be the single most difficult requirement. Sometimes it is very difficult to find information about who is behind the curtain. I had a WordPress infringer who I could not identify from her Blog. Fortunately, since it was a WordPress.com sponsored Blog, they had that information and their Takedown Notice form worked.
- The notice must contain a statement that you have a good faith belief that there is an unauthorized, infringing use. In most cases, that will be self-evident to you. The one instance where that might be an issue is if there if “fair use.” In that case, you may want to consider, carefully whether you make the request. There is a “counter-notice” procedure that the infringer can use if they believe they are not infringing (e.g., because they are entitled to “fair use”).
- Finally, the act specifically requires that you put a statement in the notice that you are signing it, you are authorized, and that it is accurate, under penalty of perjury.
The key, here, is that the last thing the ISP wants is to be monetarily or otherwise liable to you. Most of them have set up turnkey online request form systems, and in most cases, my responses have been in a 12 hour or less time period.
Finally, I think there is a need to comment about “fair use.” In keeping with the stated constitutional and congressional aim; to benefit the public, courts have been careful about enforcing copyrights in such cases. Generally, “fair use” arises in the context of use of another’s copyrighted work without permission for the purposes of criticism, parody, scholarly research, and educational endeavors. But this does not mean that if you assert one of these reasons, you have an automatic exemption from copyright protection. If challenged, the burden of showing “fair use” as a defense will be on the infringer. The courts generally review “fair use” claims under 4 standards. It is clear from the statutory language that they consider all 4:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used
- The effect of the use on the potential market for, or value of the copyrighted work
Thus, when your image is stolen, arguably the entire work is being used. If someone makes a critique of your image and the primary purpose of posting it is as illustration; that is probably fair use. But even there, the burden is on the infringer to show that they have not done so for other reasons (i.e., a “sham” critique). Even in an educational situation, there is a good argument that the very images being taken may have their best sales potential to the educational community or system. It is certainly not an “automatic” that just because you are a teacher in a public school system that you can copy and post on a website, anything you wish.
It remains to us as photographers to be vigilant, check frequently for infringement issues, and take swift action to have them taken down. At the risk of being challenged for an infringement myself :-), lets be vigilant out there, people!