Whether you are a fashion designer, a creative writer, or some other artist, it is shocking and painful to see your works published and used without your permission. When this use occurs without proper attribution, the infringement becomes flagrant. You must send proper notice, as set forth in the Digital Millennium Copyright Act (the “DMCA”) guidelines, to the Designated Agent of record with the Copyright Office.
However, artists typically react by trying to resolve through one extreme or the other. Some begin to threaten litigation immediately, even hiring an attorney or filing a lawsuit on their own behalf. More often, however, they will be too casual to end the breach, hoping to rely on a phone call or email to simply state that a breach has occurred and can only be resolved by following the removal instructions of the artist.
It is perhaps obvious that speeding up litigation is not the best option. If you find yourself in front of a judge, with or without a lawyer, it won’t look good if you don’t even try to end things amicably. The court will want to see a paper trail showing a progression of efforts that became less and less cordial until court seemed the only option.
Still, everything you do must take into account all possible outcomes, including litigation. The idea is to show through emails, your phone call notes, and letters that you were not only patient and understanding, but more than you would expect from the average person. Otherwise, the defense attorney is almost certain to exclaim, “But your honor! We just found out about this and barely had a chance to review the facts before they took us to court!” The court wants to see you make a significant effort to resolve any dispute before using valuable and poorly dispersed judicial resources.
(In this regard, note that the court will not hear any case unless the subject matter of the work has been properly registered with the United States Copyright Office. Register with the Writers Guild of America, submit material by mail to yourself or any other method just doesn’t do anything more than maybe prove that the work existed in that form on that date. It won’t get you to a judge. On the other hand, if you properly register the work with the Copyright Office U.S. author, then you can benefit from statutory damages up to $150,000 per infringement and attorneys’ fees. Plus, the burden of proof is more favorable to the plaintiff. All in all, for $35, it’s the best policy! surely you can buy!)
By the same token, however, a paper trail of extemporaneous emails will not show enough deliberate effort. Fortunately, when it comes to the Internet, there is a specific method for notifying Internet Service Providers (“ISPs”) of a claimed infringement. This specific method comes from the DMCA.
Congress sought to promote a policy that free speech should run as free as possible on the Internet. Therefore, the DMCA allows ISPs a safe harbor from copyright infringement lawsuits as long as they follow certain guidelines. One such guideline is that they are not the originator of the allegedly infringing content, only the “publisher” of that third-party content. Another one of those guidelines is that they remove anything upon proper notification of the claimed infringement.
What constitutes proper notice is explicitly stated in the DMCA:
• name, address and signature (electronic signature is sufficient) of the complaining party;
• the name or other identification of the infringing material and its specific location (ie, URL);
• other information that allows the ISP to identify the works in question;
• a statement that the owner/complainant has a good faith belief that the use of the materials has no legal basis; Y
• a statement to the truth, under penalty of perjury, that the owner/complainant has the exclusive right to the disputed use.
Most people can find information about the notice format, but don’t know where to send it. Fortunately, another necessary guideline for safe harbor is for the ISP to register a “Designated Agent” with the United States Copyright Office. The list of designated agents is available at http://www.copyright.gov/onlinesp/list/a_agents.html. And, if your work really has been violated, then there’s no need to be afraid to send this notice: these ISPs regularly receive such letters.
Once received, the ISP must remove the material in a timely manner, usually within one to two weeks, depending on the size of its overall service. After removing the material, the ISP must send a notice to the original poster, giving them an opportunity to refute the infringing charge. Removal is usually the final resolution of the problem.
Some may wonder why an ISP doesn’t simply remove any material when it receives a complaint, whether such notice is “proper” or not. In fact, a number of ISPs will do just that. But this is not always the path of least resistance. In 2008, Universal Music Corporation sent a notice and takedown letter to YouTube over a video of a baby dancing to “Let’s Go Crazy.” Rather than let the issue go, the baby’s mother, who initially posted the video for the family, filed a lawsuit. The judge ruled in favor of the mother, saying that the song was fair use and that this was obvious enough for the Universal Musician Corporation to know.
It is easy to see that a large company should not be allowed to intimidate people in their freedom of expression. That is why an individual should not be able to silence another individual. This is why the Copyright Act tries to balance, on the one hand, the incentives for the progress of the arts versus, on the other, the freedom of expression for all. Consequently, the government has provided the guidelines in the DMCA for people to protect the use of their work without infringing anyone else’s rights. This can certainly be frustrating. But it’s worth jumping over a couple of hurdles to make sure the First Amendment prospers.
