Tuesday, January 30, 2018

DMCA Takedown & the Digital Millennium Copyright Act

by Michael Roberts

What is the Digital Millennium Copyright Act (DMCA)?

The Digital Millennium Copyright Act (DMCA) is a copyright law of the United States that merges two 1996 treaties of the World Intellectual Property Organization (WIPO). Provisions are made therein to heighten the penalties for copyright infringement on the Internet. It was signed into law by President Bill Clinton on October 28, 1998 after passage by a unanimous vote in the United States Senate on October 12, 1998. Title 17 of the United States Code was amended by the DMCA to extend the reach of copyright while limiting the liability of on-line service providers for copyright infringement by their users.

The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of internet service providers and other intermediaries. It was adopted by the European Union in the Electronic Commerce Directive 2000; the Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

Use and Abuse of DMCA Take-Down Demands

Digital Millennium Copyright Act takedown demands can be an effective tool for the removal of unprotected, defamatory and fallacious speech from websites and from search engines for search results displayed as a result of searches on a particular subject, person or business. For the most part, search engines and Internet service providers are protected from liability for tort such as defamation and harassment as a result of another law called Section 230 of the Communications Decency Act (if defamation is provided by a 3rd party). This can be incredibly frustrating for victims of the abuse of this safe harbor, particularly in instances where malicious and fallacious reports have been posted on websites such as RipOffReport.com, thedirty.com and CheaterVille.com. In such instances, victims can take advantage of a DMCA take-down demands to both the websites displaying the offending material and the search engines. A word of warning though; if you direct such a take-down demand to websites with low value speech and poor social responsibility records, then you are effectively “telegraphing your punches”. In such instances, stealth might be your best friend, as such, it might be tactically and strategically prudent to limit your DMCA takedown demand to the search engines only. Let’s face it, if it is not on Google it may as well not exist no matter how damaging the allegations.

The safe harbor provisions of § 230C of the CDA do not extend to copyright violations in most instances, although there are provisions for reasonable notice to be given to the offending Internet service providers. Search engines such as Google might ignore take-down demands for defamatory search results linking to defamatory website, such as Ed Magedson’s Rip Off Report, pursuant to the immunity granted to them through § 230C. However, if such a demand is made on the basis of copyright breaches, you may submit a similar take-down, but based on copyrighted material such as photos, images, quotations, or other copyrighted material owned by you, or another party willing to support you in your take-down efforts. If you elect to submit such a take-down demand, I would caution you to completely avoid the defamatory context because it may invite deeper scrutiny by the receiving party such as Google. Consequently, it may be rejected on the basis that the DMCA take-down demand is determined to be a disguise for relief from defamation, which as mentioned does not attract liability to the search engines because of § 230C.

(NOTE: If the copyright demand is for a photograph, then it must be made by the person who actually clicked the shutter! If you are actually in the photograph, then you are not the owner, unless you used a self-timer or tripod, or if you paid a third party to take the photograph in which case you can claim ownership of the photo based on “work for hire”.)

DMCA takedown demands can be directed to Google through the following web form; you are welcome to contact Rexxfield if your problems persist, but for the most part, unless the problem is catastrophic and a clear and present danger to your livelihood is evident, we suggest you try this form first. There’s no need to spend money on our services if you can achieve results by yourself unless the problem is severe:

Google DMCA Takedown Form

If you do not have a copyright breach vector, you might try the same form if the offending webpage is defamatory or harassing. We have seen limited success with this form on that basis, but do not hold your breath.



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