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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: Do I need permission from the copyright holder to make fair use?
Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).
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Question: If I am engaged in research, educational, or academic pursuits, does the fair use doctrine permit me to copy articles from a journal or periodical?
Answer: As mentioned above, it is hard to predict what a court will do when presented with a fair use defense. However, in this case the answer depends in part on your purposes in copying. If you intend to archive the copies, the answer is probably no, while if you intend to use the copies in classroom instruction (without charging for the copies), the use may be fair. In 1994 the Second Circuit Court of Appeals held that it was not a fair use for research scientists at Texaco to photocopy articles from various scientific and technical journals. Texaco argued, on behalf of its scientists, that the use was for the purpose of research, and therefore was fair under Section 107. But the court was not convinced. In reaching its decision, the court in Texaco ran through the four factor fair use analysis (see generally, what types of uses does the fair use doctrine protect? and introduction to this Chilling Effects topic). The court found that three of the four factors weighed against Texaco, and focused much of its opinion on the fourth factor, deciding that Texaco's use would have a significant impact on the potential market for the journal articles. Thus, in order to make copies of the articles, the research scientists at Texaco had to either pay for them or get express permission from the publishers. See American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994). Further, use of another's work for classroom instruction purposes may be protected under a separate provision of the Copyright Act. Section 110 of the Copyright Act contains exemptions that provide nonprofit educational institutions the limited right to use copyrighted materials in face-to-face classroom settings. This section provides: "Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction . . . ." Furthermore, the recently enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission.
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Question: What types of uses does the fair use doctrine protect?
Answer: The language used by Congress in Title 17, Section 107 specifically lists ?criticism, comment, news reporting, teaching, scholarship, and research? as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y.1982). In considering a fair use defense to a claim of infringement, a court will focus its inquiry on the specific facts of the individual case. Therefore, it is very difficult to predict with accuracy what a court will do until it engages in the inquiry. A court will almost always use the four factors listed by Congress as a guide in its inquiry. The four factors listed are: FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE
This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public. The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new. The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair. Further, the more commercial defendant's use, the less likely such use will be fair. FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK
The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright?only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. See Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988). One commentator noted that "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, [is to not] publish at all." While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED
In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK
This factor is generally held to be the most important factor. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984). It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use.
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