Bare Bones Guide to TakeDown Notices

January 30th, 20115:50 pm @    


DISCLAIMER: This is a watered down version of the Takedown and Put-back provisions of the DMCA. It is good for an introduction to the topic. Purists look away. A basic knowledge of what a copyright is and what it can apply to is presumed.
Ever wondered why a YouTube video you liked suddenly did a disappearing act and is no longer viewable? Well one of the possible reasons for this could be that the video was removed in response to a Takedown notice (TDN) sent to YouTube.

What is a TDN (Take Down Notice)?

A Take down notice is basically a letter/notice sent to a web site’s administrators saying that the website is playing host to copyright-infringing material and that the owner of that copyright (known as the copyright proprietor) requests such material to be taken down. Taking an example, ‘A’ based on his own creative work, shoots a movie. He, by virtue of creating the work (movie) owns the rights to use (and license others to use) it as he sees fit. Suppose B, without the permission of A, obtains a part of his movie and uploads it to YouTube, he is infringing upon A’s rights. In this case, under the provisions of the Digital Millennium Copyright Act (DMCA), 1998, A may send a takedown notice to YouTube asking it to take down the infringing video.
It is important to note here that the DMCA is an American legislation and hence its provisions apply only to Web hosts, sites and search engines located within the US.

What is the law concerning a Takedown notice?

The law concerning takedown notices is imbibed in the Digital Millennium Copyright Act. The legislation, among a slew of other intellectual property right-related amendments, increases the punishment for copyright infringement and creates provisions for safe harbours for Online Service Providers (OSPs including ISPs). A safe harbour is a provision that creates an exemption from liability under the law for a party. In simple words, due to the provisions of the DMCA, OSPs would not be held liable for copyright infringement if the merely facilitated the posting of such material and didn’t per se take part in the uploading thereof.
YouTube is one such OSP and this enables it to host videos without actually being held liable for copyright infringement. To counterbalance these freedoms granted to safe harbours, the provision for TDNs exist. These allow for a copyright proprietor to demand that an OSP remove materials the rights of which belong to him.
For an OSP to avail all the benefits that come with being designated a safe harbour, it is required to comply with these notices with due haste. This is in order to prevent proliferation of the said infringing material(s).
If any of that went above your head, here’s another take: A finds a copy of a movie he owns the rights to on YouTube (it was uploaded by B), he sends the OSP i.e. YouTube (not B) a TDN, YouTube complies with it and removes the allegedly infringing material. Does it end there? Well actually, no. Now the option of asking YouTube to bring back the video is available to B. basically if B feels that there was no infringement on his part (in good faith) he has the right to ask the OSP to re-allow access to the video. Such a notice is aptly called a counter-notice and the process is called put-back (as opposed to take-down).

Requirements of a Take Down Notice-

There are some requirements to be met by every TDN and/or Couter-notice (with regard to what should be contained in it). These are:
(SOURCED FROM http://brainz.org/dmca-takedown-101/)
“Under the law, this notice must contain the following elements:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

2. Identification of 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.

3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

Requirements of a counter-notice:

That notice must contain the following elements-
(SOURCED FROM http://brainz.org/dmca-takedown-101/)
“1. A physical or electronic signature of the subscriber.

2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification.

When a counter-notice is filed, the host must then notify the person who filed the original notice and then, in a time between 10-14 business days, restore the work that was taken down. In that time, the filer of the notice has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline.
Finally, in extreme cases where the notice was false and filed knowingly so, the subscriber/user can file suit against the filer for damages including attorney’s fees and court costs.”

Application of Take down Notice in India-

The TDN process is not applicable in India though normally a threat of a lawsuit will force a website to remove allegedly infringing material.

Further reading (Casual. Nothing heavy. The ones in bold are MUST READs):

Also google and check out “DMCA 512”.

Article by

Tarun Krishnakumar is a I year undergraduate student of law at the National Law School of India University (NLSIU), Bangalore. He is interested in a diverse range of legal and non-legal areas from Consumer Protection to technology and everything in between.

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