Attack of the Copyright Lawyers

I saw an interesting email today sent to a publisher from that publisher’s ISP. The ISP said it received a “valid claim” under the Digital Millennium Copyright Act (DMCA) that materials on the publisher’s web site may violate copyright interests. Apparently the ISP was contacted by attorneys from a major film/TV company that had identified an article on that site as the location of the infraction. While the attorneys did not identify what the offending material was, the article did mention in passing the name of a subsidiary of the film/TV company along with a very small photo of an obscure piece of equipment that I assume was the culprit. It is my understanding that the same mention and photo ran in the corresponding print issue of the magazine.

The complaint may or may not be justified and is yet to be determined. But what was eye-opening to me was the way the entire DMCA process works. In my opinion here are the problems with what happened to this publisher:

• To my knowledge, the attorneys made no effort to contact the publisher directly even though the information was easily obtained on the web site containing the suspect content. Instead they filed a complaint through the ISP’s abuse system. This was a legitimate publication web site with full contact information, street address, and I know they would have immediately taken any corrective action needed upon immediate notification.
• There was no specific mention in the complaint of what the offending content was and what correction needed to be taken. How can anyone take corrective action unless they know what needs to be corrected?
• The ISP said they received a valid claim under the DMCA that materials on the publisher’s site “may violate the copyright interests of the party filing the complaint.” The ISP then goes on to state that the site has been or will be disabled in the next 24 hours. Pretty short notice especially with no information on what was wrong.
• The ISP only notified the publisher via email. You would hope that an ISP would have a better customer service policy than to simply notify via email.

At first I was amazed at how this could happen to a well-established publisher in this way. But as I began to dig into the DMCA more, I realized that this is exactly the way the law is written. The online media portion of the DMCA is what is known as Online Copyright Infringement Liability Limitation Act (OCILLA). In particular there is a section known as the Takedown Provision that allows copyright holders to work directly with an online service provider to remove any offending material. While specific policies can vary from ISP to ISP, here’s basically how it works:

1. Sally creates and publishes a photo, article, or other copyrighted work.
2. Joe puts one of Sally’s copyrighted works on his web site hosted by BigBoyISP.
3. Sally (or one of her lawyer’s scanning the search engines) finds the copyrighted work on Joe’s web site.
4. Sally or her lawyers contact BigBoyISP’s designated agent of the infringement.
5. BigBoyISP takes down the offending material from Joe’s site or can even shut down Joe’s entire site.
6. BigBoyISP notifies Bob that they’ve taken down the material or shut down the site.
7. Joe can now send a counter-notice to BigBoyISP refuting Sally’s copyright claim.
8. BigBoyISP has to wait 10-14 days to see if Sally and her lawyers decide to file a lawsuit.
9. Is Sally does not file a lawsuit, BigBoyISP can put the material back up or re-enable the site.

I’m no copyright lawyer and I wholeheartedly support copyright laws as a means to protect intellectual property. But something seems a bit off with this provision. Legitimate publishers can be held ransom pretty easily and ISPs are being put in the position of facilitating legal due process. ISPs can be put in the position of having to pull down a publisher’s entire web site for a couple weeks while the complaining party decides whether or not to file a suit. In the case of the publisher I mention above, there is only one mention of a company name in a sidebar of an article — a situation that I don’t think will qualify as a copyright infringement in the end.

Nonetheless, the law is what it is. So here are my recommendation to all publishers to avoid such circumstances altogether.  (And marketers, you’re not exempt either if you publish any information outside your own prioprietary data on your site.) 

• Make sure you’ve secured all appropriate rights for anything you put on your web site: articles, photos/illustrations, schematics, audio/video, etc. Just because you have rights in one medium (like print) doesn’t necessarily mean you have rights online or rights to syndicate that content.
• Make sure your content production and syndication procedures take these rights and exclusions to these rights into account so you aren’t publishing content online or syndicating content that you shouldn’t be.
• Make sure all of the key people in your organization are familiar with the DMCA and especially the Online Copyright Infringement Liability Limitation Act.
• Establish good, proactive communication with your ISP. Make sure they know the right person in your organization to contact if they receive any kind of copyright complaint about one of your sites. Make sure you know and understand their policies for the DMCA Takedown Provision. And ask them to not only contact you by email but by phone as well.

There are individuals and web sites out there that blatently copy information and who would never respond to an inquiry from a copyright attorney, so I can somewhat understand the DMCA holds the ISP’s feet to the fire instead of the individual publisher. Besides, the ISP is typically an easier and wealthier target to sue.

But both legitimate publishers and copyright attorneys alike want the same thing: to protect intellectual property and brand. Let’s hope publishers keep putting more controls and checks into place. And let’s hope that the copyright attorneys see that going a bit beyond the letter of the law could help them accomplish their goal more quickly. Yeah, right…like that’s going to happen.