DMCA Safe Harbor: Part Two – The DMCA Checklist

In part one, we discussed the DMCA safe harbor provision as it pertains to bloggers, we looked at the elements of the law, what exactly they said and even the elements that compose a proper DMCA notice.

But even though the law itself is generally well understood, that does not mean it is not abused. Some, either through accident or malice, file false DMCA notices and demand removal for content that is not infringing. Others, unwittingly sacrifice the protections the law provides by not responding appropriately.

Bearing in mind that I am not an attorney, it is worth taking a few moments to think about strategies for using and handling DMCA notices. Because, whether you receive one or have to send one, it is best to be prepared for what is expected of you.

Common DMCA Mistakes

There are many mistakes that you can make when sending a DMCA notice. Though most of these mistakes are pretty innocent and don’t cause any major problems, some can lead to serious legal issues and are worth taking special effort to avoid.

Though there is little research in this area, the most common DMCA mistakes I see are as follow:

1. Incomplete DMCA Notice: As mentioned in part one, a DMCA notice has several parts that must be completed before it can be considered a proper notice. Leaving out elements of a notice can result in it being ignored as the host has no obligation to assist. The best way to remedy this is to ensure you work from a good DMCA template.
2. Sent to Wrong Person: DMCA notices are meant to be sent to the host or, in some cases, the search engines. It is important to first locate the correct host and then the correct person at that company. The best way to find the host is by using Domain Tools and, once you know the host, locate the DMCA information on their home page. If you can’t find it there, the U.S. Copyright Office has a database of DMCA agents you can check.
3. Not the Copyright Holder: This is easily one of the most dangerous mistakes to make. Where others simply cost time, this has potential legal implications. If you are not the copyright holder of the work or a designated agent authorized to act on the behalf of the copyright holder, you can not file a DMCA notice. Though it is frustrating when dealing with spammers that are taking other people’s content, the safeguard is there for a good reason and failing to abide by this can cause problems both with the person you’re filing against and the copyright holder.
4. Use Not Infringing: Another very dangerous mistake is filing a notice where the use is not infringing. Cases that raise questions about fair use or issues of permission, such as cases where a contract exists, should not be resolved with a DMCA notice.
5. Filing Too Late: Finally, I’ve seen many cases where a DMCA notice is filed too late and the work is already removed. Though this is relatively harmless, it annoys DMCA and abuse agents. This is most common when a cease and desist letter is sent first, or at the same time, or a spam blog is shut down for other reasons.

While there are many other DMCA mistakes that can be made, these are the most common that I see. However, for the most part, they are easily avoidable if a few precuations are taken.

Pre-DMCA Checklist

To avoid these and other mistakes, it is wise to take a moment before sending a notice and ensure that everything is in order. Before sending any notices, one should check and ensure that you can answer yes to all of the following questions:

1. Am I the copyright holder?
2. Does the use clearly violate my license?
3. Is it clearly infringing (no fair use issues)?
4. Have I completely filled out my DMCA notice?
5. Have I located the host to the best of my ability?
6. Is the host within the U.S.?
7. Do I have the current DMCA agent for the host?
8. Are there no other ways I can report the site that might be better (spam, TOS violation, etc.)?
9. Would I be comfortable if this notice were published publicly (IE: Chilling Effects)?

Though the list is far from perfect, taking a moment to ensure the completeness and merits of your case can help ensure that you do not run afoul of the law and create more problems than you are solving.

After all, filing a DMCA notice does no good if it is ignored or, worse yet, comes back to haunt you.

On the Other End

The other side of the DMCA equation is what to do when you receive a DMCA notice or are the subject of one. The answer, is not simple and depends heavily on how you received the complaint. Typically, there are two scenarios:

1. You received the notice yourself, either as a cease and desist or as an actual DMCA notice.
2. Your host received a DMCA notice and is notifying you of it.

In the first case, the best thing you can do is comply with the notice, even if you think it is questionable. Complying with the notice not only helps protect you legally, but also shows a good faith effort to address the issue. Once the work is down, you can then talk the case over with an attorney and decide whether or not to restore the work.

If your host received the notice, there are three likely ways they have dealt with it:

1. Sent you the DMCA notice and trusted you to handle it. This is common with domain hosts and other paid hosting providers. These usually come with an ultimatum for you to remove the allegedly infringing material before they take action on your behalf.
2. They have removed the content themselves. Common at some free hosts and social networking sites.
3. They have suspended your site. Common at some larger domain hosts and some free sites, this is a situation where they suspend the site entirely. pending removal of the material in question by yourself.

In the first situation, which is by far the most desirable, you treat the notice as if you had received it yourself by complying with it and then analyzing the notice for validity. If you find that you weren’t running afoul of the law, you can file a counter-notice with the host and put the content back when they say it is ok.

The second situation is more difficult, you need to first check your site and make sure it is still up and running, minus the content in question. If your site is working, get a copy of the DMCA notice from the host, if a copy wasn’t provided, and evaluate it. If the notice is invalid or the content was not infringing, in the estimation of you and your attorney, you can then file a counter-notice with the host and have them put the content back.

The important thing though is to not put back the content yourself in these situations, even if you feel it is not infringing. Doing so could result in you becoming a “repeat infringing” and result in you being banned from the service, even if you technically did nothing wrong.

The final setting is the most difficult to deal with and the least desirable. To deal with it, you need to do the following things:

1. Get a Copy of the Notice: If you weren’t given a copy of the notice immediately, get one from your host and do so quickly.
2. Get Private Access to Your Site: Have your host enable access to your site via FTP or private backend so you can remove the material in dispute.
3. Remove the Material: Pull down the allegedly infringing material.
4. Notify Your Host: Let your host know that the work has been removed and ask them to restore the rest of your site.
5. Determine Validity of the Notice: If the notice is questionable, consult the matter with your attorney and consider filing a counter-notice if you get advice saying that it is safe.
6. Restore Work (If Applicable): Either have your host restore the content or do so yourself when they say it is acceptable. Once again, do not restore the work without confirmation that enough time has passed.

It is worth noting that, if you get enough copyright complaints filed against you, you could find that your account is suspended permanently with no recourse. Most hosts reserve this for infringers that repeat many times, but some have very low thresholds.

However, the bottom line, when dealing with dealing with a DMCA notice filed against you is to work with your host, whoever that might be, and not do anything independently without both the approval of your legal council and your host’s abuse team.

Conclusions

Proper use of the DMCA is all about proper procedure and following the steps laid out in the law. Problems mostly arise when the safeguards are not followed or people intentionally misuse the law to their own end.

If you follow the law as it is written, there is very little reason why it should come back to haunt you and, for the most part, even being the subject of a DMCA notice doesn’t have to be a total disaster.

If you know your rights and are prepared, you can both use the DMCA well and survive those that might seek to misuse it. It is simply a matter of having the understanding and being prepared for the worst.