The Digital Millennium Copyright Act (DMCA) is not without its critics and the International Olympics Committee’s overzealous use is providing fuel to the fire. Under pressure from internet advocates the IOC has backed down from its request for YouTube to remove a video critical of China’s relations with Tibet and the video is now available again. Here is the article from CNet News.
The DMCA provides web hosts and internet service providers a “safe harbor” from copyright infringement claims resulting from content provided from others if certain procedures are followed. If the safe harbor qualifications are met, only the customer or user can be liable and not the actual website or ISP. The following is a general summary of the DMCA. There are several detailed nuances depending upon how the alleged copyright infringing material is stored or transmitted.
To qualify for the safe harbor protection, the site must: (1) notify the customers of its policy; (2) follow proper notice and takedown procedures; (3) designate a copyright agent with the U.S. Copyright Office; (4) not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network.
The notice and takedown procedures require a copyright owner to provide the following information to the service provider: (1) the name, address and electronic signature of the complaining party; (2) the infringing materials on the website or a link to it if the notice is sent to a search engine; (3) a sufficient description to identify the copyrighted works; (4) a statement by the owner that there is no legal basis for the use of the materials (e.g., fair use, nominative use, parody or other exceptions to copyright violations); and (5) a statement of authority and the accuracy of the comments in the notice.
Once notice is sent, the service provider is required to takedown the material or disable access to it. The service provider then has to notify the individual responsible for the allegedly infringing material. This allows the individuals to provide the internet service providers an opportunity to contend the takedown notice was inaccurate or invalid which is often called a counter-notice. Upon receipt, the ISP is to forward the response to the original takedown provider. Then, if the original takedown notice provider and alleged copyright owner does not bring a lawsuit in district court within 14 days, the service provider is forced to put the material back on the site.
The counter-notice must contain: (1) the name, address and electronic signature of the provider; (2) identification of the material and its location before removal; (3) a statement that it was improperly taken down by mistake or misidentification; and (4) a consent to the appropriate jurisdiction if litigation is necessary.
The Electronic Frontier Foundation requested YouTube and the IOC to restore the video because clearly there was no copyright violation. Even if the few seconds showing the Olympic rings could be considered infringement, the fair use doctrine would clearly apply. It is not clear how far the DMCA process was before the IOC recanted its takedown notice.
The video, below, contains some graphic scenes. More importantly, had the IOC not tried to quash the video, I never would have seen it or watch it, would you? Sometimes media savvy is more important than knowing how to use the DMCA.