Taking Down Infringing Web Content

You’re surfing the internet and discover that someone is using your original content without your permission. A popular remedy is to request the web host to “take-down” the infringing material. While there are many euphemisms for using the term takedown, in fact just last week I received a take-down request from my daughter who objected to a comment I posted on Facebook, for intellectual property the right and corresponding obligation stem from the Digital Millennium Copyright Act “DMCA.” The proponents of free speech and a robust discussion of ideas fear the law is calculated to favor the large media companies as service providers seeking to stay within the law’s safe harbor will remove fair use non-infringing content rather than risk copyright infringement exposure. That in this 24/7 YouTube world, where most opinion has a limited shelf life, the removal will have a chilling effect on social commentary where the counter procedures are unduly burdensome to the posting subscriber.

The protocol under the law is fairly straight forward. The web host or service provider, such as Google, will have designated an agent to receive notice of infringement. The agent contact information is available at the Copyright Office and usually can be found on the service provider’s site. In addition to the removal or disabling of infringing material, the law provides a safe harbor for service providers to avoid liability of their own provided there was no actual knowledge, and once aware or upon receipt of notice, they act in a timely manner to remove or disable their subscriber’s infringing content. Briefly, the notification of claimed infringement must be a written communication provided by the content owner, or authorized agent, to the designated agent of a service provider identifying 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. Identification of the infringing material with a description sufficient to permit the service provider to locate the material to remove or disable is also required. All requisite elements of a take-down notification can be found at 17 USC 512 (c)(3)(A).

Upon receipt of the notice, the service provider may avoid liability by removing or disabling the infringing content in an expeditious manner and providing timely notice to the subscriber of its removal. The subscriber may issue a counter notification contesting the removal. The service provider is then required to provide the initiating party with a copy of the counter notification with notice that the content will be restored after 10 business days. Unless notified of Court proceedings between the parties, the service provider is required to restore the content no sooner than 10 or later than 14 days after notification, hence the concern of many that the dissemination of robust commentary about the political and social issues of our time may be thwarted.

Keeping with the 1st Amendment, there is no prior restraint, and some could argue that the ability to make unfettered posts does allow a short window for commentary, which may be all that’s necessary in the Twitterverse, while protecting media from those unauthorized postings to YouTube.