A guide for content host responsibilities to content creators under the DMCA
The Digital Millennium Copyright Act (DMCA) is intended to update copyright law to deal with the regulation of digital media. When you upload any videos onto YouTube or make posts on social media, it falls under the DMCA.
At its core, the DMCA exists to protect IP owners and to outline a specific set of rules for content hosts (e.g. YouTube, Instagram) in order to deal with copyright infringement.
The DMCA creates “safe harbors” for online content hosts. If a content host follows the rules outlined in the DMCA to qualify for safe harbor then their liability is limited in cases where their users infringe on other people’s copyrights. For example, if someone uploads your video to YouTube without your permission, as long as YouTube follows the rules outlined in the DMCA, you can’t sue YouTube for copyright infringement. That doesn’t mean you can’t file a claim against the person who posted your video, only that YouTube isn’t financially liable for that individual’s infringement.
While there are several rules content hosts need to follow to qualify for safe harbor, it’s the procedure to deal with infringement claims that is the most important for content creators to understand. All content hosts are required to have some method available for users to report copyright infringement. When someone reports infringement to the content host it kicks off a series of requirements for the content host to follow to keep their safe harbor. Here’s an example of how the take-down procedure works:
- Mike finds a copy of his video, which he exclusively owns the copyright to, on YouTube posted by Karen
- Mike has his lawyer send YouTube’s designated copyright agent a letter which must include the following:
- Contact information
- The name of the video mike created
- The URL of the video Karen posted on YouTube
- A statement signed by Mike that he has a good faith belief that the video Karen posted infringes his copyright
- A statement that the information in the notification is accurate
- A statement that, under penalty of perjury, Mike is either the copyright holder or authorized to act for the copyright holder
- Mike’s signature
- In response to the letter from Mike’s attorney, YouTube is required to take down the video. YouTube doesn’t need to perform any kind of investigation or even watch the video. Once they get the letter from Mike’s attorney they need to take the video down, full stop.
- YouTube then needs to inform Karen that they took down the video
- Karen then has the option to send a counter-notice to YouTube, if she thinks the video was taken down unfairly. Her counter-notice is required to have:
- Karen’s Contact Information
- Identification of the removed video
- A statement under penalty of perjury that Karen has a good faith belief the video was taken down mistakenly
- A statement consenting to the Jurisdiction of Karen’s local US Federal District Court, or, if she’s outside the US, to a US Federal District Court in any jurisdiction where YouTube is
- Karen’s Signature
- When YouTube receives Karen’s valid counter-notice, YouTube must notify Mike of the Counter notice, and then wait 10-14 business days.
- If Mike files a lawsuit against Karen within those 10-14 business days, YouTube can’t put the video back up until the lawsuit is finished, depending on the outcome.
- If Mike doesn’t file a lawsuit against Karen within that window, YouTube may, but is not required to, put the video back up.
As long as content hosts follow this procedure, they can’t be sued, but if they deviate from this, they open themselves up to liability. If your livelihood comes from creating content to post on content hosts, you need to be able to protect your rights. If you think your copyrighted work is being infringed, or if your work is being taken down unfairly, feel free to contact us.
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