DMCA - ANALYSIS - TITLE 2

NOTICE AND TAKE-DOWN PROVISIONS

Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

Notice and Take-Down Provisions

Certain of the Act’s exemptions apply only if an OSP complies with the notice and take-down provisions of the Act. These provisions allow copyright owners to notify an OSP of allegedly infringing material on the OSP’s system and require the OSP to remove or block access to such material after receiving such notice.

Designated Agent of OSP. An OSP must designate, both to the Copyright Office and on its service, the contact information for an agent that will receive such notices.⁴⁶

Form and Content of Notice. A notice from a copyright owner must be in writing and must be signed by such copyright owner or his or her agent and must include certain specified information, including an identification of the allegedly infringing material and information reasonably sufficient for the OSP to locate the material or the reference or link to it.⁴⁷ If the OSP receives a notice that substantially complies with the Act’s requirements, then the OSP must act expeditiously to remove or block access to the material that is alleged to be infringing in order to remain eligible for the exemption from liability.

Misrepresentations. The Act provides that anyone who knowingly materially misrepresents under the Act that material is infringing is liable for any damages incurred by an OSP or a User as a result of the OSP relying on such misrepresentation in removing or blocking material.⁴⁸

Subpoenas. The Act also provides a procedure by which a copyright owner can obtain from a court a subpoena directing an OSP to disclose to the copyright owner information sufficient to identify an alleged infringer of material as to which the owner has sent a notice to the OSP.⁴⁹

1. General Conditions for Eligibility
2. Safe Harbors for System Storage and Information Locating Tools
3. Safe Harbors for System Caching
4. Safe Harbors for Transmission and Routing
5. Extent of Exemptions from Liability
6. Notice and Take-Down Provisions
7. "Take Down" Procedures