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BSA: Copyright Infringement & the DMCA
THIS IS A BLOGGER SERVICE ANNOUNCEMENT I've had my photographs and text stolen twice in the past month. As an attorney, I knew where to look and what to do to rectify the situation--plus I can add that ever imposing Esq. after my name. In the aftermath of my annoyed tweeting, I realized that most of my fellow bloggers don't have this luxury, nor do they know what to do when they find that their hard work has been used without permission. After one too many requests for this information, I have decided to write the following post. My intention is to give the average blogger a place to start?the basic do-it-yourself remedy to internet-based copyright infringement. Please remember that this is general information, and that specific facts may make the following moot. Before I discuss the DMCA, a suggestion. Post a copyright notice on your blog. Even if you don't register your blog, your photographs, or your text, your work is still entitled to basic copyright protections. This notice should be easy to find. My notice is in the footer, which is fairly common. Some choose to dedicate a static page to their notice, while others who use varying degrees of Creative Commons licenses post graphics somewhere in their sidebar. The main reason for this is anecdotal. I had a service provider try and deny my take down request because my photographs were not directly marked with a ©. Once I pointed them to my all-encompassing notice, they backed off and agreed to take down the content.* It?s also important to let others know what you will and won?t tolerate with respect to your content?s usage. So, what do you do when your copyright is infringed upon? Sometimes a polite e-mail to the site administrator will get the job done. More often than not, you're going to have to go elsewhere. Elsewhere is almost always the web host. Copyright infringement on the Internet is governed by the Digital Millennium Copyright Act ("DMCA"). For our purposes, the DMCA requires service providers (web hosts), when properly notified, to remove content that infringes upon another's copyright. These notices?whether in e-mail or printed form--are generally referred to as DMCA takedown notices, and are governed by § 512(c)(3). I?m going to reemphasize that service providers must be properly notified, as this is why many bloggers are rebuked when they send these requests. Under § 512(c)(3) of the DMCA, a proper notice includes the following six things: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the 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. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Not exactly the most straightforward thing in the world, right? Here?s a few tips on how to turn this into a letter. Write simply and clearly. You?re not a lawyer, so don?t pretend to be one. Tell them what you?re writing about and what you want, making sure to check off each requirement, (i) ? (vi). Electronic signatures are a weird thing?sometimes just signing off as The Baking Barrister will work, sometimes you need to sign off as /s/ The Baking Barrister. Depends on who you are dealing with. We identify work on the Internet via URL. You don?t need to be fancy to comply with (ii) and (iii). You?re basically just showing them what happened--this is mine, as shown here, and it was infringed upon, as shown here. You are the complaining party. Lawyers often copy statutory language verbatim. I certainly copy the language from (v) and (vi) when writing my takedown notices--with proper grammatical corrections. Note: These two sections are often what bloggers forget to include, as they are the only two requirements that aren?t naturally included in such a letter. Do Not Forget Them. Double check you have included all six requirements. Once you send off your notice, what?s going to happen? Service providers are supposed to respond promptly. If they tell you that they contacted the user, keep an eye on the infringing website to make sure it gets removed within the week. If it isn?t, request that they remove it themselves.** And what if your notice is not proper? Under § 512(c)(3)(B)(ii), as long as you have identified your copyrighted work, the location of the infringed work, and provided your contact information, the service provider must contact you when you have not complied with all statutory requirements. At that point, double check, fix, and resubmit. Hopefully this gives some of you the tools necessary to protect your intellectual property. And hopefully, a proper DMCA takedown notice will rectify your situation. If not? You could always sue someone. *This likely happens most when dealing with a foreign service provider. Because of treaties and other rules, many of them are subject to the DMCA. While they may honor DMCA requests, their knowledge of what makes something copyrighted in the US might be lacking?especially when it differs from their own country-specific rules. In my experience, being able to point them to something concrete was helpful. **It?s possible that the user will file a counter-notice against you. In such cases, further action is necessary, which I don't cover here. Edit: I mentioned in the comments how I keep track of where my content goes. If you have any additional methods, please share them as well. I know I don't have all my bases covered. Thanks. DISCLAIMER: This post is not to be construed as legal advice or the creation of an attorney-client relationship. It is for informational purposes only and does not reflect any jurisdictional differences or changes in the law. Nor does it reflect any definite outcome of your predicament. In other words, this is general, non-specific information, and if you have any questions or concerns, consult a lawyer in your state. 
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