The Digital Millennium Copyright Act of 1998 was created to protect copyright owners from infringement of their works (such as photos, documents, music files, and videos) over the Internet. Amongst other things, the DMCA created an exception (“safe harbor”) against monetary copyright liability for “service providers” (broadly, providers of online services) who establish and follow specified “notice and take-down” procedures. Under such procedures, copyright owners can inform service providers of potentially infringing uses (via “take-down notices”), and (upon notice to the party who posted the content) service providers block further access to infringing content. Once blocked, access can only be unblocked if the take-down notice is withdrawn by the submitter, or if the poster provides a “counter-notice” that the content was blocked by mistake, or by misidentification of the content in question.
Recently, the Department of Commerce published a set of guidelines that lay out best practices (and practices to be avoided) for ISPs, folks originating take down notices, and folks submitting counter-notices. Included in this guidance are some constructive suggestions for service providers, such as establishing “trusted submitter” processes for parties who have a history of accuracy and completeness in submitting take-down notices. These guidelines are quite helpful for any service provider that receives and posts materials from third party submitters.