The Adventures of Cheap Host and Slyandsneeky.com in DMCA-Land
Charles Carreon
THE DMCA NOTICE
The ISP in our story is called Cheap Host, which hosts a website called SlyAndSneeky.Com. If SlyAndSneeky.Com pirates content from, let's just say Disney, eventually Cheap Host will receive what's called a “DMCA notice” from a Disney attorney. Disney will have prepared the copyright notice in a manner complying with the statute. The DMCA notice will be: (1) written to the designated agent, (2) signed under penalty of perjury, stating that the signer has power to act on behalf of the owner of an exclusive right that is allegedly infringed, and that the complainant has a “good faith belief that the use of the material and the manner complained of is not authorized by the copyright owner, its agent or the law.” The notice will further (3) identify the copyrighted works (probably by reference to the URL), (4) identify the infringed material in a fashion sufficient to locate it, and (5) supply reply contact information. If you need to send a DMCA Notice, you'll find one in your Legal Documents. If you get one, check to see if they did it right.
THE NOTICE GOES TO CHEAP HOST'S DESIGNATED AGENT
If Cheap Host has done what it needs to do, Disney will already have discovered that Cheap Host has registered an agent for receipt of DMCA notices with the copyright office, providing the name and contact information for the person to receive infringement notices under 17 USC § 512(c)(2). A link to the site with the list of agents appears in Legal Links. Let us assume that Cheap Host has in fact registered its agent with the copyright office, and receives the DMCA notice from its agent.
SURRENDER QUICK!
At this point, Cheap Host must act “expeditiously” to remove the infringing content, following a formal “notification and take-down” procedure. Cheap Host must remove or “disable access to” the infringing material, shutting down SlyAndSneeky.Com. Cheap Host must also notify the operator of SlyAndSneeky.Com of the removal or disablement of the website. Timely notification provides Cheap Host with immunity from liability from the operators of SlyAndSneeky.Com for any damages resulting from non-operation of their website.
A COUPLE MORE REQUIREMENTS TO REACH THE SAFE HARBOR
If Cheap Host removes or disables access to the infringing material, Cheap Host must meet two additional requirements to qualify for “safe harbor from liability” for contributory copyright infringement. Cheap Host must be able to demonstrate no actual knowledge that the infringing material was being hosted, or lack of information making the infringement apparent. While this doesn't impose an affirmative duty to monitor all websites for potential infringement, Cheap Host must be able to show that it did not ignore “red flags” that announce piratical intent. To satisfy the second factor, Cheap Host must be able to demonstrate that it does not receive direct financial benefit from the infringement.
All these conditions being satisfied, the owners of Cheap Host should be able to sleep well at night, knowing that they will not ultimately be held liable in damages for the copyright infringement. As a practical matter, DMCA notices are now given wide credence by genuine ISPs, who have discovered there is little downside from shutting down websites that operate with stolen content. At least in this regard, the DMCA seems to be keeping the arteries of the Internet from becoming clogged with the detritus of copyright infringement.
SLYANDSNEEKY.COM SENDS A COUNTER-NOTIFICATION TO RESTORE SITE ACCESS
Let's imagine that SlyAndSneeky.Com really doesn't have any content that infringes Disney copyrights. Someone in the Disney office just got a little over-eager to prosecute a DMCA case, and fired off this notice on inadequate grounds. Such things happen, though I dare say not at Disney.
If they want their site back up, what do SlyAndSneeky.Com website owners do? They send their ISP's designated agent a written “counter notification” under § 512(g)(3), stating “under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled [by the ISP] as a result of mistake or misidentification of the material....” The statement will further: (1) identify the material that has been removed and designate its URL prior to removal; (2) provide the “subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located.”
CHEAP HOST RESTORES ACCESS WITHIN TEN DAYS
Assuming that the owners of SlyAnd Sneeky.Com are well-informed enough to submit a counter notification, what does Cheap Host do? The answer is in § 512(g)(2)(B): “Upon receipt of a counter notification described in (3), [Cheap Host shall] promptly provide [Disney] with a copy of the counter notification, and inform [Disney] that it will replace the removed material or cease disabling access to it in ten business days.” That's what Cheap Host must do if it wants to enjoy the protections of the ISP safe harbor provision.
SLYANDSNEEKY.COM GETS THE SHORT END OF THE STICK
Would the owners of SlyAndSneeky.Com have a claim for damages against Disney if they were wrongfully accused of posting material infringing Disney's copyrights? Well, to recover damages in a suit against Disney, they would have to meet a rather high standard of showing wrongful intent on the part of Disney's attorneys. Section 512(f) provides that any person who “knowingly and materially misrepresents ... that material or activity is infringing ... shall be liable for any damages ...” So if Disney's lawyers had a good faith belief that the “material was infringing,” the owners of SlyAndSneeky.Com will have no remedy against them. Nor will they have much of a remedy against Cheap Host, because an ISP “shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing ... regardless of whether the material or activity is ultimately determined to be infringing.”
THE DMCA NOTICE
The ISP in our story is called Cheap Host, which hosts a website called SlyAndSneeky.Com. If SlyAndSneeky.Com pirates content from, let's just say Disney, eventually Cheap Host will receive what's called a “DMCA notice” from a Disney attorney. Disney will have prepared the copyright notice in a manner complying with the statute. The DMCA notice will be: (1) written to the designated agent, (2) signed under penalty of perjury, stating that the signer has power to act on behalf of the owner of an exclusive right that is allegedly infringed, and that the complainant has a “good faith belief that the use of the material and the manner complained of is not authorized by the copyright owner, its agent or the law.” The notice will further (3) identify the copyrighted works (probably by reference to the URL), (4) identify the infringed material in a fashion sufficient to locate it, and (5) supply reply contact information. If you need to send a DMCA Notice, you'll find one in your Legal Documents. If you get one, check to see if they did it right.
THE NOTICE GOES TO CHEAP HOST'S DESIGNATED AGENT
If Cheap Host has done what it needs to do, Disney will already have discovered that Cheap Host has registered an agent for receipt of DMCA notices with the copyright office, providing the name and contact information for the person to receive infringement notices under 17 USC § 512(c)(2). A link to the site with the list of agents appears in Legal Links. Let us assume that Cheap Host has in fact registered its agent with the copyright office, and receives the DMCA notice from its agent.
SURRENDER QUICK!
At this point, Cheap Host must act “expeditiously” to remove the infringing content, following a formal “notification and take-down” procedure. Cheap Host must remove or “disable access to” the infringing material, shutting down SlyAndSneeky.Com. Cheap Host must also notify the operator of SlyAndSneeky.Com of the removal or disablement of the website. Timely notification provides Cheap Host with immunity from liability from the operators of SlyAndSneeky.Com for any damages resulting from non-operation of their website.
A COUPLE MORE REQUIREMENTS TO REACH THE SAFE HARBOR
If Cheap Host removes or disables access to the infringing material, Cheap Host must meet two additional requirements to qualify for “safe harbor from liability” for contributory copyright infringement. Cheap Host must be able to demonstrate no actual knowledge that the infringing material was being hosted, or lack of information making the infringement apparent. While this doesn't impose an affirmative duty to monitor all websites for potential infringement, Cheap Host must be able to show that it did not ignore “red flags” that announce piratical intent. To satisfy the second factor, Cheap Host must be able to demonstrate that it does not receive direct financial benefit from the infringement.
All these conditions being satisfied, the owners of Cheap Host should be able to sleep well at night, knowing that they will not ultimately be held liable in damages for the copyright infringement. As a practical matter, DMCA notices are now given wide credence by genuine ISPs, who have discovered there is little downside from shutting down websites that operate with stolen content. At least in this regard, the DMCA seems to be keeping the arteries of the Internet from becoming clogged with the detritus of copyright infringement.
SLYANDSNEEKY.COM SENDS A COUNTER-NOTIFICATION TO RESTORE SITE ACCESS
Let's imagine that SlyAndSneeky.Com really doesn't have any content that infringes Disney copyrights. Someone in the Disney office just got a little over-eager to prosecute a DMCA case, and fired off this notice on inadequate grounds. Such things happen, though I dare say not at Disney.
If they want their site back up, what do SlyAndSneeky.Com website owners do? They send their ISP's designated agent a written “counter notification” under § 512(g)(3), stating “under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled [by the ISP] as a result of mistake or misidentification of the material....” The statement will further: (1) identify the material that has been removed and designate its URL prior to removal; (2) provide the “subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located.”
CHEAP HOST RESTORES ACCESS WITHIN TEN DAYS
Assuming that the owners of SlyAnd Sneeky.Com are well-informed enough to submit a counter notification, what does Cheap Host do? The answer is in § 512(g)(2)(B): “Upon receipt of a counter notification described in (3), [Cheap Host shall] promptly provide [Disney] with a copy of the counter notification, and inform [Disney] that it will replace the removed material or cease disabling access to it in ten business days.” That's what Cheap Host must do if it wants to enjoy the protections of the ISP safe harbor provision.
SLYANDSNEEKY.COM GETS THE SHORT END OF THE STICK
Would the owners of SlyAndSneeky.Com have a claim for damages against Disney if they were wrongfully accused of posting material infringing Disney's copyrights? Well, to recover damages in a suit against Disney, they would have to meet a rather high standard of showing wrongful intent on the part of Disney's attorneys. Section 512(f) provides that any person who “knowingly and materially misrepresents ... that material or activity is infringing ... shall be liable for any damages ...” So if Disney's lawyers had a good faith belief that the “material was infringing,” the owners of SlyAndSneeky.Com will have no remedy against them. Nor will they have much of a remedy against Cheap Host, because an ISP “shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing ... regardless of whether the material or activity is ultimately determined to be infringing.”