What Is DMCA Protection?

The DMCA, or the Digital Millennium Copyright Act, protects creative works on the internet and contains the legal foundation for rights management in digital works. It covers things such as articles, videos, and photographs.

The DMCA protects both copyright owners and internet service providers (ISP), otherwise known as online service providers (OSP). To warn would-be content thieves away, you can use a DMCA Protection Badge on your website.

Copyright Owners

The DMCA gives copyright owners a simple and straightforward way to get their content removed from websites that don't have permission to use it. They can do this by sending a DMCA takedown notice to the ISP that hosts the offending content. ISPs are required by law to obey the notice as long as it meets certain standards.

DMCA notices mean that a copyright owner doesn't have to deal directly with the person who stole the content. Furthermore, a DMCA notice can lessen the chances that a lawsuit enters the picture. Anyone accused of infringing on a copyright has the right to file a counter notice, which claims that no infringement happened.

ISPs

ISPs, including search engines, email providers, etc., located in the United States also benefit. If they obey DMCA notices and take other reasonable measures to stop copyright infringement, they won't face charges or other negative consequences for hosting the offending content. These types of protection are known as a "safe harbor" provisions.

There are two types of safe harbor provisions. One protects ISPs and web hosts against infringing content that users post. The other protects against material that links to infringing content.

In order for an ISP to qualify for this protection, its activities must fit into one of the following categories:

  • Transitory communications - The ISP transmits information by automatic processes. It has no control of the content that gets transmitted.
  • System caching is temporary storage of data that hasn't been modified.
  • Storage of content applies to websites that allow users to post content, such as YouTube.
  • Information location tools include search engines, directories, and other similar sites. As long as they don't have the ability to stop the offending content from being posted, they are protected.

The key is that in order for ISPs to be protected, they can't have a direct role in posting the infringing material. They also can't have previous knowledge that the content was violating a copyright. In addition they can't profit from the infringing material.

The DMCA orders that ISPs have a DMCA agent to deal with notices related to copyright infringement. The agent's contact information must be registered with the US Copyright Office. It should be available on the ISPs website along with a DMCA Policy. The policy should state that the ISP wishes to obey DMCA guidelines.

If an ISP or other site links to but didn't post material that infringes on a copyright, similar restrictions apply. The ISP can't have knowledge of the infringement and can't financially benefit from it. If you are an ISP or a DMCA agent for an ISP and you receive a takedown notice, you must remove the offending material. You must also send the notice to the person who posted the content.

The person who posted the content may provide a counter notice stating that no infringement happened. Send the counter notice to the copyright owner. If the owner doesn't file a lawsuit within 14 days, you, as the ISP, should put the content back on the website that you removed it from. Also bear in mind that the DMCA only protects ISPs against copyright infringement charges, not against trademark infringement or other intellectual property law issues. ISPs may receive cease-and-desist letters that deal with these other problems.

How to Write a DMCA Notice

If you decide to send a DMCA notice, it must include the following:

  • Your signature, electronic or physical
  • Information about the copyrighted work that was infringed, including its original URL
  • The URL of the infringing material
  • Your contact information
  • A statement of good faith that says you have good reason to believe that the copyright was infringed
  • A statement saying that the information in the notice is correct and that you are authorized to act for the copyright owner (even if you are the copyright owner).

Can you use embedded videos in your content?

You are unlikely to receive a takedown notice if you use embedded videos on your website. Yes, the videos are copyrighted, but the embedded feature is just a link to the video's original source.

YouTube's Efforts to Protect Its Users

In late 2015, YouTube announced a plan to protect people who posted videos. Many content creators received DMCA notices from people who did not consider fair use, which allows anyone to use portions of copyrighted material in a limited way. YouTube's plan was meant to compensate users for legal fees. YouTube also kept videos online — but only in the US — until the infringement cases settled.

The DMCA Protection Badge

A DMCA.com Protection Badge is an icon you can place on your web pages to warn anyone who might want to steal your content. It serves as a reminder that you take advantage of the protection that the DMCA issues. If you have a WordPress site, there is a plugin that makes it easy for you to use the protection badge. For the best protection, you should register your badge. Sometimes, you may find such a badge on a site that has stolen content. The badge does not stop you from sending a takedown notice in that case.

If you choose to use such a protection badge, be sure to pay attention to the Terms of Use. The badge should link only to a Website Protection Certificate. If you ever notice that someone is not using the badge correctly, report the violation.

DMCA.com also has a portal that you can use to monitor your pages. There is a plan that makes it easy for you to find out who is stealing your content.

DMCA Protection and You

The DMCA makes it possible for both content creators and ISPs to feel more comfortable about their online content. By learning about the protection the DMCA offers, you can shield yourself and your content from sticky intellectual property law issues. If you need help with your DMCA protection, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.