DMCA: Policy Mechanics

To remain eligible for safe harbor under § 512(c), an online service provider (OSP) who allows posting of user-generated content (UGC) must document, implement, and communicate its policy for monitoring, blocking, and removal of infringing content.  The OSP also must be prepared to restore removed material correctly in the event that a takedown notice is successfully challenged by a poster.   A notice – counter notice mechanism offers a conservative approach to balancing respect for fair use and the First Amendment with the rights of copyright holders without injecting the company into an infringement suit between the parties in conflict.

In response to a restore request made via an OSP’s counter-notification procedure, the OSP must first contact the complaining copyright holder to notify her of the intent to repost in not less than 10 but not more than 14 business days.  After reposting, the OSP would only be bound to respond to a filed court order to remove the offending material.

The OSP is required to designate an agent to receive notifications of claimed infringement.  The company should identify a responsible individual with a stable, regularly-checked, and routinely-tested e-mail address to serve as its agent.  Some providers opt to create a generic e-mail address (for example, “copyright@theOSP.com”) for notice receipt because a generic is less likely to change than an individual person’s e-mail address.  The company must register its agent selection by completing the Interim Designation form provided at the Copyright Office website.  The required registration fee (currently $105 for the basic filing fee) to be submitted with the designation form is also listed at the Copyright Office website.  A simple webpage must be added to the OSP’s website showing, at a minimum, the agent’s name, address, phone number, and electronic mail address.

In addition, the OSP’s notice and take-down mechanism must identify and terminate repeat offenders, and must not allow offending users to simply repost removed content under a different file name or user name.  Instead, the company must institute and execute routine procedures for counting, logging, and reviewing infringement events and the users responsible.  Termination after a fixed number of events (for example, “three strikes”) lends itself to crisp, manageable enforcement.

Finally, the OSP must not take any steps, proactive or reactive, to automatically or procedurally circumvent any commercially-available or privately-developed copyright protection measures, such as copyright filtering technology or access controls to published articles.

The requirements found in § 512 (c)(3)  must be met by parties who wish to alert the OSP to potential infringement.  Although the OSP is not required to act upon incomplete takedown requests, the company should adopt a policy of providing reasonable assistance to help copyright holders submit their notifications correctly.  Some service providers employ web forms to facilitate the submission of complete and correct notifications by copyright holders.  Example copyright infringement notification policy implementations by OSPs are plentiful on the Internet.  The following are a few sample notice-and-takedown and counter-notification implementations for UGC hosts: