Welcome to the second entry in our online copyright series. Previously we discussed the U.S. copyright laws and what you need to do to make sure your content is protected. Today I want to get into the steps that you can take once you find your content being used elsewhere on the web.
As part of the Digital MilleniumCopyright Act of 1998 (DMCA), limitations were created on the liability of online service providers for copyright infringement when engaging in certain types of activities. This section of the DMCA is known as the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA is also sometimes referred to as the Safe Harbor provision or as DMCA 512 because it added Section 512 to Title 17 of the U.S. Legal Code. The basic point of the Safe Harbor provision is to exempt online service providers from copyright infringement liability provided certain rules are followed.
In order to be protected under the Safe Harbor provisions of OCILLA, online service providers must comply with two general requirements to protect the rights of authors:
- The provider must adopt and reasonably implement a policy of addressing and terminating accounts of users who are found to be “repeat infringers”
- The provider must accomodate and not interfere with “standard technical measures”
Online service providers that comply with the requirements can not be held liable for monetary damages relating to copyright infringement, but they may still be ordered to perform specific actions by the court. While these two general provisions must be followed in order for a service provider to be protected under OCILLA, it is another OCILLA requirement that we will be focusing on here. In order to provide better protection for copyright owners, OCILLA requires service providers seeking liability protection to designate an agent to whom notices of copyright infringement can be sent and providers must disclose information about those users who are allegedly infringers. These designated agents are on file with the U.S. Copyright Office and is listed online in the Directory of Service Provider Agents For Notification of Claims of Infringement.
In order to be protected under the safe harbor provisions, a service provider must not have actual knowledge that it is hosting infringing material. Although service providers are not required to actively seek out infringing material on its system, there are a couple of ways in which a service provider can be put on notice of infringing material on its servers. The first and most important method of notification is a notice from the copyright owner. This notice is often referred to as a DMCA takedown notice and is the method that we will use to get your stolen content removed from the infringing site.
The third and final post in this series will discuss the DMCA takedown notice in more detail and will explain how to write a proper notice and where the notice should be sent. The process for these notifications is clearly spelled out in OCILLA which keeps the service providers from having to make decisions about whether or not material is actually infringing or not. As long as the provider follows the proscribed process, it is provided liability protection. This is generally good news for you as the copyright owner also because infringing content is usually removed without much hassle.
Before we get into the process of sending out a DMCA takedown notice, there is some information that you will need to gather on the infringing site. When you first come across a site that you believe to be infringing on your copyrighted material, these are the first steps you should take:
- Record the address of the infringing site address. Make sure you record the site’s domain name and the specific page address(es) where the infringing material is located.
- Check to see if there is any contact information listed on the infringing site.
- Enter the website’s domain into the Whois lookup at http://whois.domaintools.com/. Note the following information about the domain (if the domain has a private registration service like Domains By Proxy, get the address information for the privacy service):
- ICANN Registrar
- Registrant Name
- Registrant Address
- Registrant Phone Numbers
- IP Address
- Take the IP Address found in the previous step and run a Whois report on it. This should help to find the company that hosts the infringing site. Do not try to find the service provider by the nameservers because these will often point to a reseller hosting account. Once you find out who the hosting service provider is, record the following information relating to the provider:
- Company Name
- Address
- Email address
- Phone Number
- Provider’s website
- Try to find the service provider in the Directory of Service Provider Agents For Notification of Claims of Infringement and copy down the notification email and/or mailing address for the provider.
Once you have collected all of this information, you are ready to create and send out the DMCA takedown notice.
