Online Content Sharing, Part II: Takedown Notices
by Robert Parker
As we noted in Part I of this series, one of the challenges for copyright owners who find their material posted online is finding the individuals who posted it. To combat this problem, the safe harbor provision requires service providers to have a system in place by which copyright owners can request that allegedly infringing material be taken down. It is up to service providers to determine the best way to accept such notices, bearing in mind that removal of content must be sufficiently expeditious. As an example, YouTube allows individuals to submit a formal DMCA notice, fill out an online form, or sign up for Content ID, which automatically scours the YouTube library and tries to find claims for you.
For a takedown notice to trigger the service provider’s safe harbor requirement, it must meet several criteria:
the claimant (i.e. complaining party) must identify the copyrighted work the offending post allegedly infringes
the claimant must identify the online location of the offending material
the claimant must provide accurate contact information
the claimant must attest a good faith belief that the offending post is infringing
the claimant must confirm that it either actually owns the copyrighted work or is authorized to act on the owner’s behalf
the claimant must confirm that it has an exclusive right to the offending post
Although many of these requirements are primarily intended to ensure that the complaining party is not filing a false or illegitimate complaint, you will notice that it does not actually require the service provider to actually confirm that the work is, in fact, an infringement.
Safeguards for the Original Poster
Once the service provider has received a valid takedown notice, it is essentially on notice that it must take the material down or risk loss of safe harbor. It is then essentially the online poster’s burden to show that he is not infringing on the claimant’s work. However, there are safeguards in place which try to preserve balance in the law. Anyone who files a false or frivolous claim takes on substantial legal risk, and for non-meritorious claims generally, the poster has an opportunity to submit a counter-notice, which claims that his work is valid.
There are also several safeguards in the safe harbor statute itself to protect the poster: limitations on the claimant, legal remedies for the poster against frivolous claims, and a counter-notice process.
First, as noted above, the claimant must affirm his or her statement under penalty of perjury. Most of us notice the “under penalty of perjury” wording on almost every contract we sign and may not give it a second thought, but it is a powerful deterrent against knowingly false claims. It is an important safeguard against certain kinds of frivolous or fraudulent takedown notices.
Second, in addition to possible criminal liability for perjury, by submitting a takedown notice, the claimant exposes himself to a lawsuit by the poster. Here’s an example: say the poster puts up a variety of memes, which feature pictures of a prominent public figure and critical statements about that politician. The public figure then files takedown notices, claiming that the pictures used are protected by copyright. His claim isn’t perjury, because the images really are protected by copyright, but the postings may be protected by fair use or freedom of press. If the poster suffers any financial damage as a result of his legally permissible posts being taken down—say, because the memes function as advertisements to the poster’s website—the poster can now sue the claimant for damages.
This is why it’s so important that the takedown notice includes the claimant’s accurate contact information; it allows for the government (in case of perjury) or the poster (in case of a lawsuit) to actually find the claimant and litigate the issue.
The third and most important safeguard against false or frivolous takedown notices is that the DCMA provides posters with the opportunity to file a counter-notice. The counter-notice must include:
the location of the offending material prior to its removal
the poster’s accurate contact information
a statement that the material is not infringing the claimant’s copyright
consent by the poster to be sued in a U.S. jurisdiction
As with the notice, the information in the counter-notice is signed and affirmed under penalty of perjury. It is then up to the service provider to decide whether to allow the material to stay online. If the service provider decides that the material can be restored, it must give the claimant 10 days to respond, and if the claimant does not respond, the material can go back online.
It may seem at first blush that this counter-notice completely negates the takedown process, but in practice, it is very rarely used. For one thing, in cases where the material is actually infringing, the poster is unlikely to try to keep it up (and many service providers will include negative consequences or even banishment for a poster who frivolously defends his infringing posts). Counter-notices contain the same deterrents against frivolous use as takedown notices: the poster must provide his contact information, attest under penalty of perjury, and not only must he consent to be sued, but must do so in a U.S. jurisdiction, which is not required for the claimant. Unless the poster is particularly invested in that particular post and service provider, the poster is much more likely to either write off the loss or go to another service provider and post the offending material there.
Online Content Sharing, Part III: Is It Working?