THIS TUTORIAL IS INTENDED AS AN EXPLANATION OF THE CONCEPTS SURROUNDING “COPYRIGHT”.
THE INFORMATION PROVIDED BELOW DOES NOT CONSTITUTE LEGAL ADVICE.
IF YOU ARE CONCERNED ABOUT ISSUES OF COPYRIGHT THAT MAY RELATE TO YOURSELF, THEN YOU SHOULD SEEK THE ADVICE OF A QUALIFIED LEGAL REPRESENTATIVE.
Its a four-letter word… DMCA.
DMCA or “Digital Millenium Copyright Act” is a piece of United States Copyright Legislation.
This legislation covers 5 specific areas, but the section that effects 99.9% of us is called “DMCA Title II: Online Copyright Infringement Liability Limitation Act” or simply “OCILLA”
Here is what WIKIPEDIA has to say about OCILLA:
The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional safe harbor for online service providers (OSP) (a group which includes internet service providers (ISP)) and other Internet intermediaries by shielding them for their own acts of direct copyright infringement (when they make unauthorized copies) as well as shielding them from potential secondary liability for the infringing acts of others.
OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the “Safe Harbor” provision or as “DMCA 512” because it added Section 512 to Title 17 of the United States Code.
By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users. WIKIPEDIA
“Good God that is about as boring as a reeeeeallly boring thing!” I hear you all shout at me.
Well, yes, yes it is. I never promised you a rose-garden!
DMCA/OCILLA came into existence because it was recognised that with the new technology of the internet today, people could upload and publish copyrighted material with incredible and unstoppable ease. In fact it is so easy for people to do this that it rapidly became impractical from both physical and financial perspectives for a website provider to actually police this problem.
RedBubble alone has something like 6,000,000 images on its servers. If they were to check every one of these images for breaches of copyright, at 30 seconds per image, it would take 1x person roughly 50,000 hours to check every image… if they work a 40-hour week, then it would take them 1250 weeks – 24 years just to complete this task. Not the most suitable of solutions. Even if they employed 8 people to do this task – it is still going to take 3 years!… and during that time infringing works would still be on the site.
It was recognised that this was an impossible task for any internet business, but a solution had to be found… so DMCA 2 – OCILLA was brought kicking and screaming into this world, it was held up by its feet and spanked on the bum, and it let out a wail that was heard all around the world.
What OCILLA does is to provide websites with protection from liability for [unknowingly] publishing and selling illegal works, providing they follow certain protocols as set out in the Act. OCILLA provides website providers with a “Safe Harbour” from prosecution.
In essence, OCILLA shelters website providers from any liability which would normally arise as a result of the actions of its members.
but we just want to know about the DMCA Takedown Notice stuff…
Yeah yeah yeah, we will get to that soon enough. You just gotta wade through all this stuff first.
Its not terribly exciting for me either…
Website providers must follow a set of protocols in order to qualify for the Safe Harbour exemptions to liability. These protocols are:
- [the website] does not receive a financial benefit directly attributable to the infringing activity,
- [the website] not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and
- Upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material. WIKIPEDIA
It is the last of these protocols that we are most interested in, so let’s break it down into little bight-sized pieces, because it is not as simple as it looks…
Upon receiving notice…
The website must first a notice… they do not have to police their own site for infringing works – instead they can wait until they first receive notice.
…from copyright owners or their agents,
Only the original copyright owner or their agents can file a DMCA Takedown Notice. It is an offence to file a DMCA Notice if you falsely claim to be the copyright owner or their agent.
act expeditiously to remove…
It is generally accepted that “expeditiously” means within 24 hours. WIKIPEDIA
…the purported infringing material.
At this point in the process the work in question has not been proven to actually infringe copyright. It is only “purported” by the claimant to breach their copyright. Further discussions via the Counter Claim Process may show that the work does not breach copyright.
So long as a website follows these protocols then they are safe from liabiliity arising from them publishing and selling works which breach copyright.
If you think that your website provider is being heavy handed by removing your work without letting you know first, or without explaining how the image breaches copyright… well you can thank all the people who uploaded work which breaches copyright – it is their fault – not the website provider’s.
The website provider is simply looking after its own best interests, and who can blame them!
And don’t forget – your website is not saying that your work is illegal, what they are saying is that they have received notification that your work is illegal, and they are now following protocols by expeditiously removing your image – pending further discussions between yourself and the original copyright owner.
But don’t I get a say about this?
Yes, yes you do. DMCA2/OCILLA is not an unfair legislation. It has been recognised that mistakes can be made, and that the legislation can be used maliciously, this is why there is a specific provision within the legislation that enables you to fight back if you feel that your work has been unfairly removed from a website.
This process is called the Counter-Claim Process, and there is a specific provision [512G] within the act which allows you to do this.
It has been estimated that roughly 60% of all Takedown Notices are invalid for many reasons, including: WIKIPEDIA / IMPROPER REMOVAL OF CONTENT
- Not correctly following the requirements of the legislation.
- Mistaking “Trademark Infringement” for Copyright Infringement.
- Mistaking “defamation” for Copyright Infringement.
These last two reasons for filling a DMCA Takedown Notice have no legal standing under DMCA2/OCILLA. Those actions are covered by seperate laws – which can not remove your works from a website via the DMCA Process.
Basically, once you have filed a Counter Claim, the original claimant has 14 days to respond, and if they do not respond, then your work must be re-instated on the website.
Please God, when do we get to the interesting bit?!
So that is the background of DMCA, and a general overview of the Takedown & Counter-Claim Processes.
Not terribly sexy, is it?
The next section will be more interesting [maybe]…
Further Reading … if you are still having trouble sleeping, or you have no social life…