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 Chilling Effects Clearinghouse > DMCA Safe Harbor > Frequently Asked Questions Printer-friendly version

Frequently Asked Questions (and Answers) about DMCA Safe Harbor

  • Q: What is the Digital Millennium Copyright Act?
  • Q: What are the DMCA Safe Harbor Provisions?
  • Q: What are the notice and takedown procedures for web sites?
  • Q: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?
  • Q: What does a service provider have to do in order to qualify for safe harbor protection?
  • Q: What are the criteria a service provider must satisfy in order to qualify for safe harbor protection under Subsection 512(a) of the Digital Millennium Copyright Act?
  • Q: Does a service provider have to notify its users about its policies regarding the removal of materials?
  • Q: What are the counter-notice and put-back procedures?
  • Q: Does a copyright owner have to specify the exact materials it alleges are infringing?
  • Q: Can a copyright owner find out the identity of the individual responsible for the allegedly infringing material?
  • Q: What happens if an individual is found to repeatedly infringe?
  • Q: How are the safe harbor provisions applied to educational institutions?
  • Q: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?
  • Q: If a service provider qualifies for protection under one of the DMCA section 512 safe harbors, does this preclude the service provider from protection under other 512 safe harbors?
  • Q: What is the significance of Section 512(a) of the DMCA to service providers?
  • Q: Do the safe harbor provisions of section 512(c) apply to instances of alleged trademark infringement?
  • Q: What are the criteria a service provider must satisfy in order to qualify for safe harbor protection under Subsection 512(a) of the Digital Millennium Copyright Act?
  • Q: What is third-party liability, also known as "secondary liability"?
  • Q: Can an online service provider (OSP) be held contributorily liable for acts of trademark infringement by one of its users?
  • Q: Does a service provider have to follow the safe harbor procedures?
  • Q: What is section 512 of the DMCA, and what are its various provisions?
  • Q: What are the communication requirements that Section 512 imposes on OSPs, complainants, and alleged infringers?
  • Q: What subject matter is not copyrightable?
  • Q: To qualify for a DMCA Safe Harbor, do ISPs need to respond to notices for takedowns of alleged P2P infringements?
  • Q: Why does an ISP send DMCA notices to its subscribers for copyright owners?
  • Q: Can search engines be liable for copyright infringement by providing hyperlinks to search results?
  • Q: Can the subject of a photograph use the DMCA 512 takedown process?
  • Q: Do the Section 512 Safe Harbor provisions apply to the distribution of circumvention tools such as serial numbers or to methods for disabling copyright management systems?
  • Q: Does a DMCA takedown mean the material taken down was infringing?
  • Q: Why does a search engine get DMCA takedown notices for materials in its search listings?
  • Q: Why does a web host or blogging service provider get DMCA takedown notices?
  • Q: Why does a user-generated content site get DMCA takedown notices for links users have posted?
  • Q: Does filing a counter-notification indicate that you are willing to defend yourself against a claim of copyright infringement?
  • Q: Must the receiver of a take-down notice notify the sender of the action it takes regarding the notice?
  • Q: What rights do I have if someone knowingly demands removal of material to which they do not have the rights?
  • Q: What is a repeat infringer?
  • Q: Can a hyperlinker be protected by the DMCA safe-harbor?
  • Q: How do I file a DMCA counter-notice?
  • Q: Why does a web host, blogging service provider, or search engine get DMCA takedown notices?
  • Q: Does the DMCA require service providers to filter or monitor user postings to their sites?
  • Q: Where do I send a DMCA counter-notification?

    Question: What is the Digital Millennium Copyright Act?

    Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor).

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    Question: What are the DMCA Safe Harbor Provisions?

    Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

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    Question: What are the notice and takedown procedures for web sites?

    Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

    • The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
    • The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
    • Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
    • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
    • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

    Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

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    Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?

    Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.

    There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions:

    • Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
    • System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)]
    • Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)]
    • Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]

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    Question: What does a service provider have to do in order to qualify for safe harbor protection?

    Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

    In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

    Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

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    Question: What are the criteria a service provider must satisfy in order to qualify for safe harbor protection under Subsection 512(a) of the Digital Millennium Copyright Act?

    Answer: Subsection 512(a) provides a safe harbor for service providers in regard to communications that do not reside on the service provider

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    Question: Does a service provider have to notify its users about its policies regarding the removal of materials?

    Answer: To qualify for exemption under the safe harbor provisions, the service provider must give notice to its users of its policies regarding copyright infringement and the consequences of repeated infringing activity. [512(i)(1)(A)] The notice can be a part of the contract signed by the user when signing up for the service or a page on the service provider's web site explaining the terms of use of their systems. While there are no specific rules about how this notice must be made, it must be "reasonably implemented" so that subscribers and account holders are informed of the terms. [512(i)(1)(A)]

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    Question: What are the counter-notice and put-back procedures?

    Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

    A proper counter-notice must contain the following information:

    • The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
    • Identification of the material and its location before removal [512(g)(3)(B)]
    • A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
    • Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

    If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]

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    Question: Does a copyright owner have to specify the exact materials it alleges are infringing?

    Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)].

    However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material.

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    Question: Can a copyright owner find out the identity of the individual responsible for the allegedly infringing material?

    Answer: The safe harbor provisions permit a copyright owner to subpoena the identity of the individual allegedly responsible for the infringing activities. [512(h)] Such a subpoena is granted on the condition that the information about the individual's identity will only be used in relation to the protection of the intellectual property rights of the copyright owner. [512(h)(2)(C)]

    The DMCA subpoena provision does not apply to requests for the identities of users of ISP conduit 512(a) services, but only to users of hosting or linking, for which a takedown may be sent under 512(c)(3)(A). Thus DMCA subpoenas cannot be used to find the identities of users engaged in peer-to-peer filesharing. Recording Industry Assoc. of America v. Verizon Internet Svcs., Inc.

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    Question: What happens if an individual is found to repeatedly infringe?

    Answer: The safe harbor provisions require the service provider to include in its copyright infringement policies a termination policy that results in individuals who repeatedly infringe copyrighted material being removed from the service provider networks. [512(i)(1)(A)] This termination policy must be made public in the terms of use that the service provider includes in its contracts or on its web site.

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    Question: How are the safe harbor provisions applied to educational institutions?

    Answer: The safe harbor provisions make a special exception to educational institutions that qualify as service providers under section 512. [512(e)] While a corporation is responsible for the activities of its employees, faculty members or graduate student employees who are performing teaching or research functions are not considered a part of the institution itself for certain infringing activities so as to maintain the academic freedom of these institutions. [512(e)(1)]

    The institution can therefore avoid liability for infringement even if the infringing individuals knew they were infringing, provided that:

    • the infringing activities did not involve the provision of access to materials required for a course within the previous three years [512(e)(1)(A)]
    • the institution has not received more than two notifications of alleged infringement by the faculty member or graduate student in the preceding three year period [512(e)(1)(B)]
    • the institution provides all users of its network or system with informational materials that describe and promote compliance with copyright law [512(e)(1)(C)]

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    Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

    Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

    Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.

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    Question: If a service provider qualifies for protection under one of the DMCA section 512 safe harbors, does this preclude the service provider from protection under other 512 safe harbors?

    Answer: Whether a service provider is entitled to protection under any one of subsections 512(a) - 512(d) will be based solely on the criteria in that subsection and will not affect a determination of whether that service provider qualifies for limitations on liability under any other subsection 512(a) - (d) [512(n)].

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    Question: What is the significance of Section 512(a) of the DMCA to service providers?

    Answer: If a service provider falls within the requirements of subsection 512(a), then it will not be liable for monetary, injunctive, or other equitable relief. Specifically, a service provider will not be liable for copyright infringement by reason of (1) the service provider

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    Question: Do the safe harbor provisions of section 512(c) apply to instances of alleged trademark infringement?

    Answer: Section 512(c) does not pertain to instances of trademark infringement. Sub-section (1) states, ?a service provider shall not be liable for . . . infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider . . . .? (emphasis added). On its face, therefore, 512(c) is not applicable to a situation in which a trademark holder gives notice to an on-line service provider (OSP) (see What defines a service provider under Section 512...?) that a user is infringing his or her intellectual property rights. However, in the absence of any caselaw on the subject, should a trademark holder bring a claim for contributory infringement, an OSP might be able to mount a valid defense by analogy to section 512(c).

    See also Can an online service provider (OSP) be held contr...?.

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    Question: What are the criteria a service provider must satisfy in order to qualify for safe harbor protection under Subsection 512(a) of the Digital Millennium Copyright Act?

    Answer: Subsection 512(a) provides a safe harbor for service providers in regard to communications that do not reside on the service provider

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    Question: What is third-party liability, also known as "secondary liability"?

    Answer: The concept of third party liability refers, as the name implies, to situations in which responsibility for harm can be placed on a party in addition to the one that actually caused the injury. The most common example comes from tort law: a customer in a grocery store drops a bottle of wine and another customer slips on the puddle and injures himself; he may bring an action for negligence against the customer who dropped the bottle and against the owner of the grocery store. Under the common law doctrine of third-party liability, a plaintiff must show not only that an injury actually occurred, but also (in most cases) that some sort of connection existed between the third party and the person who actually caused the injury.

    As such the concept of third-party liability is often divided into two different types: contributory infringement and vicarious liability. Typically, contributory infringement exists when the third party either assists in the commission of the act which causes the injury, or simply induces the primary party to do so commit the act which caused the injury. (See What is contributory infringement?.) Vicarious liability often requires the third party to have exerted some form of control over the primary party

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    Question: Can an online service provider (OSP) be held contributorily liable for acts of trademark infringement by one of its users?

    Answer: Under section 512(c) of the DMCA an OSP will not be held liable for instances of copyright infringement so long as the OSP satisfies certain statutory requirements. (See What are the DMCA Safe Harbor Provisions?.) However, there is no equivalent legislation pertaining to trademark infringement, and given the paucity of caselaw concerning liability of OSPs in such instances, it remains an open question as to whether or not an OSP could, or should, be held liable for acts of trademark infringement by its users.

    In trademark law contributory liability exists when a manufacturer or distributor intentionally induces another party to infringe a valid trademark, or when it continues to supply products to a party that it knows, or has reason to know, is using the products to engage in trademark infringement. Inwood Laboratories v. Ives Laboratories, 456 U.S. 844 (1982). (See What is contributory trademark infringement?.)

    Lower courts have since disagreed somewhat over what exactly satisfies the

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    Question: Does a service provider have to follow the safe harbor procedures?

    Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.

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    Question: What is section 512 of the DMCA, and what are its various provisions?

    Answer: The On-Line Copyright Infringement Liability Limitation Act (OCILLA), included as section 512 of the Digital Millennium Copyright Act (DMCA), was passed in 1998. It provides Internet Service Providers (ISPs), such as providers of DSL and dial-up Internet access, as well as other Online Service Providers (OSPs), such as search engines, with a

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    Question: What are the communication requirements that Section 512 imposes on OSPs, complainants, and alleged infringers?

    Answer: Each of the parties -- the complainant, the Online Service Provider (OSP), and the alleged infringer -- has the right to communicate with the other parties. In addition, OSPs and complainants are required to engage in certain communications in order to take advantage of the DMCA's notice-and-takedown and safe harbor provisions. (For more information about the process see FAQ 130.)

    The complainant starts the Sec. 512 process by notifying the Online Service Provider (OSP) or the OSP?s agent in writing of a copyright infringement. (See [FAQ 127 for more information about what constitutes an OSP and FAQ 450 for more information about what constitutes copyright infringement.) Section 512(c)(3)(A)(iii) sets out the requirements for notice to OSPs. Under this section, the complainant must specifically identify the material that is claimed to be infringing or to be subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

    Section 512(d)(3) sets out the procedure for contacting information location tools, such as search engines. Under Sec. 512(d), the complainant must identify the reference or link to the allegedly infringing material, and must provide enough information for the search engine to locate the link. (For more information about the contents of notices, see FAQ 440.)

    The complainant is not required to contact the alleged infringer at any time. [§ 512(h)(5).] However, complainants who do wish to contact the infringer, or to file suit on an infringer, may use the Sec. 512(h) subpoena process to require an OSP provide its customers? identifying information to the complainant.

    The OSP has two separate sets of communication obligations. First, the OSP is generally required to establish policies regarding copyright infringement and repeat infringers and to inform subscribers and account holders about those policies as well as about the actions taken against repeat infringers. [§ 512(i)(1)(A).] This applies both to Sec. 512(c) ISPs and Sec. 512(d) information location tools.

    Second, once an OSP receives a Section 512 takedown notice, either one, Sec. 512(c) ISPs or Sec. 512(d) information location tools, is required to notify its subscriber that it has disabled access to the allegedly infringing material. [§ 512(g)(2)(A).]

    A recipient is not required to respond in any way to Sec. 512 notices from OSPs or complainants. However, without a recipient response, the OSP will generally remove or disable access to the material, possibly even disabling an ISP account. To avoid this, the recipient may file a counter-notification with the OSP, denying that the material infringes copyright. [§ 512(g)] If an OSP receives a counter-notification, then the service provider must notify the complainant that it will cease disabling access in 10 business days unless the complainant obtains a court-imposed restraining order. [§ 512(g)(2)(C)]

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    Question: What subject matter is not copyrightable?

    Answer: Copyright protects original works of authorship fixed in a tangible medium. Copyright does not protect facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. 17 U.S.C.

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    Question: To qualify for a DMCA Safe Harbor, do ISPs need to respond to notices for takedowns of alleged P2P infringements?

    Answer: Section 512 provides safe harbor protection for four classes of online service providers. 512(a) covers conduit systems that transmit and route data between users and store copies only as part of that process. 512(b) protects caching systems, which temporarily retain copies for users requesting it from its original source. 512(c) protects storage systems that allow users to store information on their networks, such as a web hosting service or a chat room. Finally, 512(d) covers information location tools such as search engines or directories. (See What defines a service provider under Section 512...?)

    Using typical P2P file-sharing services, users store files on their computers and send them directly to each other. The users

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    Question: Why does an ISP send DMCA notices to its subscribers for copyright owners?

    Answer: Notice whether the letter came from an Internet Service Provider (ISP) and not from the copyright owner. The Digital Millenium Copyright Act both protects ISPs from copyright liability (leaving the end user with that liability) and requires ISPs to participiate in a "takedown" process when copyright owners claim infriging use. See the FAQs associated with this notice for more information.

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    Question: Can search engines be liable for copyright infringement by providing hyperlinks to search results?

    Answer: Some Internet search engines have been getting "takedown" requests under the Digital Millennium Copyright Act, Section 512 (see DMCA Safe Harbor for more information). The DMCA provides a safe harbor to information location tools that comply with takedown notices, but it is not settled whether they would be liable for copyright infringement if they did not use the safe harbor. Arguably, computer-generated pages of links do not materially facilitate infringing activity or put their hosts on notice of copyright infringements.

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    Question: Can the subject of a photograph use the DMCA 512 takedown process?

    Answer: Generally, no. Only the copyright owner or an authorized representative of the copyright owner can send a DMCA takedown notice. The copyright in a photograph belongs initially to the person who took the photo, not the person who is pictured. Unless the photo subject has gotten an assignment of copyright or permission to act on behalf of the photographer, it is improper for him or her to send a DMCA takedown notice.

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    Question: Do the Section 512 Safe Harbor provisions apply to the distribution of circumvention tools such as serial numbers or to methods for disabling copyright management systems?

    Answer: Section 512 creates a safe harbor from claims of "copyright infringement" for service providers who meet the statutorily-defined criteria. "Copyright infringement" is defined by Section 501 of the Copyright Act as any violation of the exclusive rights granted in sections 106 through 121 of the Act. Copyright infringement thus does not include violations of the DMCA's Anticircumvention provisions, which are found in Section 1201 et seq. While they are unlikely to be deemed direct infringers, distributors of serial numbers may face either vicarious or contributory liability for copyright infringement. Vicarious liability requires that the distributor have the right and ability to control the infringer's behavior and direct financial gain by the distributor. In circumstances of serial numbers posted on free message boards of Usenet groups, the distributor likely lacks both control and financial benefit. Contributory liability requires that the distributor possess knowledge of infringing conduct and materially contribute to the infringement. Although a distributor of serial numbers is likely aware that the numbers will be used to infringe, under Sony, if the serial numbers are capable of capable of "substantial non infringing use" contributory infringement may not be found.

    The anticircumvention provisions prohibit circumvention of technological access protection systems as well as the distribution of tools that facilitate circumvention of access or copy protection systems. The publication of serial numbers, for example, would likely constitute the distribution of a "technology, product, service, device, component, or part thereof" that facilitates circumvention of an access control. Under ? 1201 such a tool must either be primarily designed for or produced circumvention, have limited commercial purpose other than circumvention, or be marketed for circumvention. It is unlikely, however, that the publication would constitute "copyright infringement" as defined.


    While a service provider may be under no obligation to remove material in violation of the Anticircumvention provisions in order to maintain its safe harbor protection from copyright infringement, by hosting such material the provider is exposed to potential secondary liability under Section 1201 and may therefore have an independent reason for removing the material.

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    Question: Does a DMCA takedown mean the material taken down was infringing?

    Answer: No. ISPs can take down material according to the DMCA anytime they receive a compliant notice alleging copyright infringement (see What are the notice and takedown procedures for we...?). The ISP does not have to investigate to determine whether the material was truly infringing before taking it down. The fact that someone has claimed infringement does not prove that infringement occurred -- there might be a fair use defense, or the claim might have been false or even frivolous.

    In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions of the DMCA require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

    A proper counter-notice must contain the following information:

    The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]

    Identification of the material and its location before removal [512(g)(3)(B)]

    A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]

    Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

    If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]

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    Question: Why does a search engine get DMCA takedown notices for materials in its search listings?

    Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by users' materials it links to, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

    Question: What does a service provider have to do in order to qualify for safe harbor protection?

    Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

    In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

    Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].


    Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

    Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

    Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.


    Question: Does a service provider have to follow the safe harbor procedures?

    Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.


    Question: How do I file a DMCA counter-notice?

    Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.


    For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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    Question: Why does a web host or blogging service provider get DMCA takedown notices?

    Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

    Question: What does a service provider have to do in order to qualify for safe harbor protection?

    Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

    In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

    Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].


    Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

    Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

    Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.


    Question: Does a service provider have to follow the safe harbor procedures?

    Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.


    Question: How do I file a DMCA counter-notice?

    Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

    For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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    Question: Why does a user-generated content site get DMCA takedown notices for links users have posted?

    Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by users' materials it links to, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

    Question: What does a service provider have to do in order to qualify for safe harbor protection?

    Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

    In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

    Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].


    Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

    Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

    Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.


    Question: Does a service provider have to follow the safe harbor procedures?

    Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.


    Question: How do I file a DMCA counter-notice?

    Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.


    For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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    Question: Does filing a counter-notification indicate that you are willing to defend yourself against a claim of copyright infringement?

    Answer: Filing a counter-notification indicates that the subscriber has a "good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." [15 U.S.C. s 512(g)(c)(3)] A counter-notification also requires a statement that the subscriber consents to the jurisdiction in which the address of the subscriber is located. [17 U.S.C. s 512(g)(3)(D)]

    Thus, the filing of a counter-notification does not explicitly indicate consent to defend against a claim of copyright infringement; it merely indicates a good faith belief that the challenged material is non-infringing. An individual who believes that a user has infringed or is infringing upon his or her copyright may sue the user for infringement regardless of whether a take-down notice is sent to the service provider. The safe-harbor rules provided under 17 U.S.C. Sec. 512 do not affect the right of a lawful copyright holder to sue a user who directly infringes his or her copyright.

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    Question: Must the receiver of a take-down notice notify the sender of the action it takes regarding the notice?

    Answer: No. Nothing in the DMCA requires the reciever of a take-down notice to notify the sender of the action it takes regarding the notice. The DMCA only requires a service provider to notify the subscriber that the material has been removed or access to the material has been disabled, in cases where the allegedly infringing material is residing on the network controlled or operated by service provider at the discretion of the subscriber. [17 U.S.C. 512(g)(2)(A)]

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    Question: What rights do I have if someone knowingly demands removal of material to which they do not have the rights?

    Answer: Under Section 512(f) of the Copyright Act one who knowingly materially misrepresents a claim of infringement is liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer or ISP injured by the misrepresentation, as the result of the service provider relying upon the misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

    If you are harmed by a mistaken takedown (as poster or as ISP), you may be able to recover damages and your legal fees from the person who made the wrongful claim.

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    Question: What is a repeat infringer?

    Answer: Although Section 512(i) of the DMCA states that service providers seeking safe-harbor protection must have "adopted and reasonably implemented ... a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider?s system or network who are repeat infringers," it does not define "repeat infringers." Treatise author David Nimmer (Nimmer on Copyright) has suggested that one should not be labeled a "repeat infringer" until a court has found, on multiple occasions, that he has infringed. Mere accusations, even repeated, should not turn a subscriber into a repeat infringer who must be terminated.

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    Question: Can a hyperlinker be protected by the DMCA safe-harbor?

    Answer: Someone who posts hyperlinks to online material may benefit from the DMCA safe harbor in section 512(d), "information location tools." If you linked to materials without knowing they were infringing, but then receive a notice of claimed infringement, you can claim the statutory immunity if you remove the link expeditiously (see also What does a service provider have to do in order t...?).

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    Question: How do I file a DMCA counter-notice?

    Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

    >>top


    Question: Why does a web host, blogging service provider, or search engine get DMCA takedown notices?

    Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)'s safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users" or Section 512(d)'s safe-harbor for providers of "Information Location Tools." These safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials it hosts or links to, it can avoid the possibility of money damages by following the DMCA's takedown procedure when it gets a notice. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

    For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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    Question: Does the DMCA require service providers to filter or monitor user postings to their sites?

    Answer: No, the DMCA safe harbors apply to protect a service provider who responds expeditiously to notices of claimed infringement. Nothing in the statute imposes affirmative obligations to watch for or block potential future infringements.

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    Question: Where do I send a DMCA counter-notification?

    Answer: If you believe your material was wrongly removed in response to a DMCA notification, and you choose to counter-notify to demand replacement, you should send your counter-notification to the DMCA Agent of the site that removed your page. If the agent isn't listed on the site, you can find a list of DMCA registered agents at the Copyright Office website.

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