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Digital Millennium Copyright Act (DMCA) is a copyright protection Act that was introduced in the United States of America under the Clinton Administration in October 1998. USA prior to the enactment of the DMCA already had a copyright protection law, but it had very little purview over the digital usage of the copyrighted material. To tackle this problem, the DMCA was specially designed to give attention to the digital arena. It should be noted that the DMCA complies with the WIPO Treaty and the WIPO Performance and Phonograms Treaty.
In effect, the DMCA protects copyrighted material from being unlawfully downloaded, streamed or uploaded(this includes seeding). Essentially pirating of games and movies etc. is illegal under the DMCA. It also makes those domains illegal, that support such activities.
The key feature of the DMCA takedown notice is that it isn’t issued by the government or one of its agencies. The DMCA gives power to the owner of the copyright to issue the takedown notice themselves. The DMCA takedown notice can be given to two types of people or entities-
1. ISP’s (Internet Service Providers): This class includes domain providers, search engine providers, etc. For example, when a person uses Google, and the search engine directs them to a site that is illegally providing copyrighted material, the holder of the copyright can issue a takedown notice to Google to take down the said infringing content.
But unlike individuals, ISP’s are given a certain amount of protection from liability under the Safe Harbor Act. Here they are not held liable for the acts of their client in the violation of copyright laws.
2. Individuals: Any person who has uploaded or downloaded copyrighted material can be issued a takedown notice to stop them from further infringing upon the copyrighted material.
The DMCA notice usually follows a simple process where:
– The copyright holder sends a DMCA notice to the ISP about the alleged copyright infringement.
– Following which the ISP is legally obligated to issue a notice to the content provider regarding the allegation of copyright infringement.
A genuine DMCA notice will contain the following information- – The name of the Copyright holder (individual or company).
– The copyrighted material that has been illegally used.
– The IP address that was being used when using such copyrighted material.
– The date & time of the alleged violation.
– The exact provision of the DMCA that has been violated.
It is important to note that the DMCA notice must be given in the proper format. Failure to issue a notice in the proper format means that the DMCA notice issued will not be complied with by any party who is involved in the copyright infringement.
The simplest course of action is to immediately take down the content that is infringing upon the copyright. If you do so, you won’t have to worry about any other legal repercussions. In normal cases, the actual repercussions are faced by the website host and not the individual. They are held liable via proxy as they have allowed you to host copyrighted content on their websites and have made profits from the same. Even though they are given a certain amount of protection under the Safe Harbor Act, they can still be held as liable in specific cases.
It is to be noted that depending on the ISP you are using there can be different actions taken against you. In most cases, the first few notices given to you can be dealt with by merely taking the content down, but in case you continue to use copyrighted material you are permanently banned from using the ISP. Some ISPs will also issue a fine to you for your actions.
There are a few ways you can avoid being issued a DMCA notice; they are as follows- – The simplest way is not to use copyrighted materials.
– If you don’t want to be caught using copyrighted material, you can use VPN providers. This allows you to change your IP address and therefore, no one can trace the use of copyrighted material back to you.
There are two instances where you are allowed to use copyrighted material and therefore cannot be issued a DMCA notice, or if you are issued one, you can fight it as a lawful use. They are as follows:
1. Fair use policy: Where you have used the copyrighted material but in a fairly and unambiguous way. For example, you are a retailer of mobile phones. To promote the sale of your items, you use pictures and content of the manufacturer. Here the uses of these copyrighted images can be argued to be under the fair use policy as the manufacturer’s product is being promoted. Though there is no set legal guideline to the effect, it will depend from circumstance to circumstance.
2. Licensed content: If you have got the licence to use the copyrighted content from the copyright holder, then you can file a counterclaim stating that you have obtained the license to use the copyrighted material and therefore cannot be asked to take it down.
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