Many companies and individuals generate a significant amount of material protected by copyright, including video, print, music and merchandise. Unfortunately, this material can be infringed or “reused” by others with relative ease given the ubiquity of the internet and tech-enabled counterfeiting capabilities. The Digital Millennium Copyright Act (DMCA) offers a means by which copyright holders can seek recourse in the event of infringement. This article will provide a roadmap for leveraging the provisions of DMCA to protect your copyrighted material, starting with a brief history on how this law came into existence.
Origins of DMCA
Signed into law in 1998, the DMCA was intended to balance the rights of copyright holders with the social policy goal of encouraging growth of the burgeoning digital media industry (for example, websites being built on user generated content like Napster, YouTube, Facebook). Prior to this time, existing law was inadequate to handle copyright infringement claims in this space.
DMCA gave copyright holders a means by which to issue “take down notices” to websites hosting allegedly infringing content, while absolving such sites of liability for copyright infringement through a “safe harbor” provision. In a sense, DMCA mimicked the protections given to newsstand sellers of an earlier era, insulating them from liability for the content of newspapers and magazines on offer.
Over time, a new business model of “manufacture on demand” allowed sites like Zazzle, Café Press and myriad others to provide sellers a means by which to enter the merchandise market with little or no cost. Although incidents of copyright infringement proliferated, the protections afforded by DMCA were now in place to help copyright owners defend their rights.
How to Protect Your Copyrights From Unauthorized Use
For owners of designs, music, art, text or any other copyrighted material that others may find attractive or potentially lucrative, DMCA provides clear-cut rights in the event infringement is discovered. These rights are usually laid out as a series of steps to be followed and can be found on websites (generally at the bottom of the page or near the Help section). Since all sites must adhere to DMCA in order to avoid infringement claims being made against them, the provisions are fairly consistent from site to site. Whether asked to send notice via email or complete an on-line form, copyright owners are typically asked to provide the following information:
- A physical or electronic signature, and a statement that you are authorized to act on behalf of the owner of the copyright or other rights that have been allegedly infringed;
- Identification of the copyright that has been allegedly infringed;
- The specific product URL or product number used in connection with the online sale of the allegedly infringing merchandise;
- Your name, address, telephone number and email address;
- A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the rights owner, its agent or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright or other right that is allegedly infringed.
If you are a lawful copyright holder, you should be successful in getting the infringing material removed from the site fairly quickly. The user who posted such material is given the opportunity to challenge your request; but, if you are confident in your ownership, that challenge should not be an issue, unless the user is entitled to a fair use defense, which carves out legally permissible, unauthorized uses of copyrighted material (a topic for another blog post).
Finally, it is important to note that copyrights do not need to be registered before an owner can send a take-down request, since ownership is automatically granted to owners at the time of creation under U.S. copyright law. However, as our intellectual property colleagues at Patent GC – the sister firm of Outside GC – remind us, registering for copyright protection before infringement occurs is the best way to protect and enforce rights. Also, keep in mind that the DMCA only addresses copyright claims; infringement on other forms of intellectual property (such as patents or trademarks) are handled in other ways.
For more information about DMCA, please contact Brad Auerbach at firstname.lastname@example.org or 310-382-0019.
Brad Auerbach is a Partner with our California-based team, bringing over three decades of senior in-house counsel experience in the media, gaming and technology industries. Brad has been involved in structuring many groundbreaking deals with a diverse range of rights holders, including NFL, NBA, NHL, HBO, MTV, ESPN, Sesame Workshop, Nickelodeon, Live Nation, Marvel Entertainment, International Olympic Committee, English Premier League, Screen Actors Guild, every significant Hollywood studio, each of the major record labels, many major book and news publishers, several world class photographers and Getty Images, among numerous others.