Is the DMCA the weapon of choice for Internet bullies?

Internet bullies are taking matters into their own hands by trying to use the "safe harbor" provisions of the DMCA to wrongfully intimidate others. It is crucial for all Internet service providers, including website operators, bloggers and other web services with user-generated content, etc. to fully understand the state of the law in order to avoid unneccesary harassment.

New Media Rights has received e-mails regarding DMCA scare tactics being used in inappropriate ways. Some of these threats are misinterpretations of the law, while others are flat out lies.

Here is a brief list of some misleading and untrue statements regarding DMCA threats:

• "Owner of content can use the DMCA to block your site from major search engines as well as demanding you remove said content."

• "Using copyrighted material even with manipulation is necessarily a violation of the DMCA." (not necesarily, i.e. fair use of material)

• "An unrelated third party (ie a bully) can act to bring about a takedown."

Section 512 of the Digital Millenium Copyright Act (DMCA) creates "safe harbor" provisions for online service providers who allow user generated content. Under these provisions, online service providers are granted some protection against copyright infringement claims as long as certain procedures are followed. Generally, a copyright holder must send a "take down" notice to the service provider, and the service provider will inform the user the content has been taken down. In response, the user may reply with a "counter notice" letter to try and have the content re-posted.

1). DMCA provisions ONLY apply to websites registered with the U.S. Copyright Office

However, it is extremely important to realize that DMCA safe harbor provisions are ONLY applicable for sites that have availed themselves of the DMCA. In order to do this, the website must be registered with the U.S. Copyright Office. By registering, you essentially agree to the terms of the above procedures and in return you are given a chance to remove the copyrighted material posted by other users before litigation ensues. If the website has NOT availed itself of the DMCA then regular copyright law applies and since there is no intent required for liability, you could be either secondarily or directly liable IF the content is infringing and not a fair use (See link for more on what constitues a Fair Use). There are advantages of registering for DMCA protection and it may be a good idea to protect your website from liability. To summarize, someone cannot use the DMCA safe harbor provisions against you unless you are registered with the U.S. Copyright Office.

2). Third party copyright threats are NEVER enforceable

Another noteworthy point, for DMCA or regular copyright claims, is that the copyright holder themselves MUST be the one seeking the take down. Any threats by a third party are not enforceable, so before you back down make sure the claim is a legitimate one!

"What to do if you're being bullied by an internet bully", By Flickr user Shhexycorin, under Creative Commons 2.0 Attribution-Noncommerical-ShareAlike, and therefore, this entire article is shared under CC 2.0 BY-NC-SA