DMCA - ANALYSIS - TITLE 2

TAKE DOWN

Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

"Take Down" Procedures

Exemption from Liability. If an OSP in good faith removes or blocks access to material that it has cached, stored at a User’s request, or referred users to, either because the OSP has received notice from a copyright owner or because the OSP has become aware of information from which the infringing nature of the material is apparent, the Act exempts the OSP from any liability for such removal or blocking.⁵⁰

Notice and Putback. In the case where an OSP removes or blocks material stored on the OSP’s system at the User’s request (such as the User’s Web site) because the OSP has received a notice from a copyright owner alleging infringement, the OSP must take additional steps designed to protect the User’s rights, and which may lead to putting the material back on the system.

1. The OSP must take reasonable steps to promptly notify the User that the OSP has removed or blocked the material.
2. The User may then send a "counter notification" to the OSP stating that the removal or blocking was a result of a mistake or a misidentification of the material. (The Act provides for liability to the OSP and the copyright owner for knowing material misrepresentation in such counter notification.⁵¹)
3. If the counter notification complies with the statutory requirements, then the OSP, to remain exempt from liability for the "take down", must provide a copy of the counter notification to the copyright owner that sent the original notice.
4. Unless such copyright owner then notifies the OSP that the owner has filed a court action seeking to restrain the alleged infringement, the OSP must replace or unblock the material within 10 to 14 business days of receiving the counter notification.⁵²

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