Lessons for ISPs and Webmasters
Charles Carreon
Obviously, the statute has created an elaborate game of close-to-the-net activity that can result in a whirlwind of consequences. It is important to know where you stand when a DMCA fracas kicks up. ISPs need to set sail for the safe harbor provisions as soon as sight of a copyright storm kicks up. But they must also be alert to respecting the rights of website operators who are not infringing copyright, by shifting the burden of showing infringement back to the original complainant as soon as they receive a counter-notification from the website operator. Website operators must know that operating a site with infringing content opens them to instant shutdown.
On the other hand, website operators are not powerless in the event of a wrongful shutdown resulting from a false accusation of infringement. Prompt action on a counter-notification should restore functioning of the website within ten days. Since, in the absence of being able to show a knowing material misrepresentation on the part of the copyright complainant, a website owner who is wrongfully shut down will have no remedy for the ten days of lost traffic, it is important that the period of shutdown be kept to a minimum. As always, in the event of an Internet crisis, schedule a consultation through Online Media Law.
Obviously, the statute has created an elaborate game of close-to-the-net activity that can result in a whirlwind of consequences. It is important to know where you stand when a DMCA fracas kicks up. ISPs need to set sail for the safe harbor provisions as soon as sight of a copyright storm kicks up. But they must also be alert to respecting the rights of website operators who are not infringing copyright, by shifting the burden of showing infringement back to the original complainant as soon as they receive a counter-notification from the website operator. Website operators must know that operating a site with infringing content opens them to instant shutdown.
On the other hand, website operators are not powerless in the event of a wrongful shutdown resulting from a false accusation of infringement. Prompt action on a counter-notification should restore functioning of the website within ten days. Since, in the absence of being able to show a knowing material misrepresentation on the part of the copyright complainant, a website owner who is wrongfully shut down will have no remedy for the ten days of lost traffic, it is important that the period of shutdown be kept to a minimum. As always, in the event of an Internet crisis, schedule a consultation through Online Media Law.