Step 2. Understanding legal claims in takedown notices.

This guide, originally created by the Fair Use Network, has been edited by New Media Rights and is provided for users and creators who have received a DMCA section 512 "takedown" notice.

The DMCA § 512 Takedown Process

Section 512 basically creates an expedited process for copyright holders to get material removed from the Internet. If a copyright holder feels her copyright is being infringed, she can send a § 512 takedown notice to the ISP where the content is stored or indexed. The ISP doesn't have to take it down, but the DMCA provides the ISP a "safe harbor" if it does remove the material. The safe harbor protects the ISP from liability for hosting or linking to the material, if it is later found to be infringing.

Section 512 also provides a limited encouragement to put content back online - the § 512(g) "counternotice" procedure. An online services host, such as a webhost, that takes down material is protected from "secondary" copyright liability. But in theory the webhost might be liable to its user if it turns out to have been a wrongful takedown. The webhost can gain a safe harbor from that potential liability by following the counternotice procedure.
The counternotice procedure applies only to hosting services, such as webhosts. When a hosting service receives a takedown notice, it is immune from liability for taking down the material if it notifies the user about the takedown and accepts counternotices. The sender of the original takedown notice must be told about the counternotice, but so long as they don't file a lawsuit, the webhost can put the material back online in 10-14 days.

The Copyright Claim

The section 512 takedown remedy is available only for claims of copyright infringement. While a sender may have all sorts of other claims, and even include them in the letter, the § 512 takedown remedy is applicable only to the sender's copyright claims.

Thus, any evaluation of a § 512 notice starts with copyright. Questions to consider include:

Does the target - rather than the sender - own the copyright, or have permission to do the action? (see Copyright holders, licensing & permissions)

Is the material copyrightable in the first place? Facts, ideas, systems, and methods are not copyrightable. (see Copyrightable subject matter)

Is the copyrighted material in the public domain? Anything published before 1923 is in the public domain. Other works published since 1923 may also be in the public domain. (see How Long Copyright Lasts, and What Is the Public Domain)

Is the use defensible as a fair use? The user may have a particularly strong claim if the work is transformative. (see Fair Use)

Still confused about copyright? Review Copyright 101.

If the targeted use falls under any of these, or other defenses or exceptions, then the person may wish to file a counternotice, and have the content restored.

Non-Copyright Claims:

In sending a Section 512 notice, copyright owners will often claim violations of other rights, such as trademark. The § 512 takedown process is not applicable to non-copyright claims. But an ISP might choose to respond to such claims, under its Terms of Service.

Because Section 512 is tied to notices of copyright infringement, responding to the non-copyright "takedown notices" does not give the ISP any legal benefit such as a "safe harbor" from potential liability. But an ISP may still choose to comply with a takedown notice in order to avoid any liability for knowing about infringing activity. ISPs generally guarantee themselves the rights to take those actions in their terms of service.

Non-copyright claims sometimes found in takedown notices include trademark, cybersquatting, and unfair competition. Rightsholders sometimes complain that someone has been illegally circumventing their copy-protection technology. Invasion of privacy claims may come up if someone is unhappy about the posting of a private email or photo online. Defamation (sometimes called libel in written form) and "false light" invasion of privacy are also common.

If other claims are being made, it behooves the target to pay close attention, as the sender may be thinking of actions beyond the section 512 takedown process.

Terms of Service / Terms of Use / EULAs

Almost all ISPs have "Terms of Service" or "Terms of Use" (TOU) which establish the terms of the relationship between the ISP and the consumer. Most TOUs give the ISP the right to terminate service at any time for any reason, with no liability to the customer for loss of data, loss of profit, or other harms. Many TOUs specifically mention copyright or other IP infringements as a reason for termination.

Consequently, it is common for hosting service providers and Internet access providers to forward infringement claims to their users, accompanied with a warning about violations of the Terms of Use.

Users may wish to respond to these notices quickly. The ISP may have internal policies about terminating access, and it may not be clear when those levels are reached. Because ISPs set their own terms, a subscriber should read any correspondence, and the terms of use, very carefully to understand their rights and obligations. If an ISP does not stand up for its users, the user may wish to switch ISPs to one that is more protective.

Laughing Squid is an example of a webhost that is known to offer its users greater protection from takedown notices.

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