Tyger Tyger: Safeguarding Against Predatory Copyright Takedowns

Tyger tyger, burning bright,

In the forests of the night;

What immortal hand or eye,

Could frame thy fearful symmetry?

William Blake wrote these words while chewing on the conundrum that the hand that wrought the prey also wrought the predator. But he could have equally bent this thought to Congress, as it perhaps unwittingly spun prey and predator from the words of the Digital Millennium Copyright Act of 1998 (DMCA). 

Intended to protect the fledgling internet, Congress crafted the DMCA to provide online service providers (OSPs) a safe harbor from liability for their users’ infringing content, while still giving copyright holders a pathway to protect and enforce their copyrights. But in so doing, Congress articulated a framework that with time and technology, has turned copyright holders into true predators of the digital age.

From Cottage Industry to Assembly Line Mass Production

In 2008, Google received just a few dozen takedown notices a year. By 2016, that number had ballooned to 2 million a day. Presently, Google gets more than a billion a year. YouTube separately reported that as of 2022, all but a fraction of takedown notices were auto-generated. When multiplied across the totality of platforms, publishers, and web hosting services, what is clear is that takedown notices and copyright enforcement have grown massively from manual, human-authored affairs to auto-generated big business. However, with a little planning, OSPs can turn copyright concerns from a potentially fathomless pool of liability into more of an administrative problem.

Basic Liability under the Copyright Act

Under the Copyright Act, 17 U.S.C. § 504, a copyright holder may seek statutory damages of between $750 and $30,000 (assuming actual damages, including disgorgement of profits if less). However, intention matters in copyright infringement cases. If the court finds the infringer was not aware of the copyright and had no reason to believe the materials in question were infringing, damages may be reduced to no less than $200. If a court determines the infringement was willful or effected with reckless disregard for the copyright holder’s rights, damages can be trebled, with statutory damages ranging up to $150,000. Being a mere publisher of infringing content provides no protection, as liability follows the infringing content. Even if the publisher had no idea the content being posted to their website was infringing, they can still be found liable.

DMCA’s Vital Protections for OSPs

There is, however, a relatively narrow safeguard against liability for OSPs, codified under the DMCA safe harbor provisions of 17 U.S.C. § 512. The safe harbor provisions protect an OSP against copyright claims brought under U.S. law, whenever the originator of the alleged infringement is an OSP’s end user. 

There are four flavors of safe harbor under the DMCA, although probably the most widely used is outlined under 17 U.S.C. § 512(c). Known as the storage safe harbor, it protects an OSP from liability for copyright infringement “by reason of the storage at the direction of the user of material that resides on a system or network controlled or operated by or for the service provider . . ..” The heart of this safe harbor lies in the user, and not the OSP, uploading infringing material onto the OSP’s systems. While the word “storage” is used, this safe harbor is commonly used by OSPs involved in transmitting and publicly displaying stored content, and includes streaming and downloading.

How to Qualify for the Safe Harbor

If an OSP follows the safe harbor rules – a critical gating requirement – it will not be liable for copyright infringement due to either the OSP’s transmitting, routing, or provision of connections to or from infringing material, or the OSP’s intermediate or transient storage of that material. So, what are the rules? 

To be eligible for a safe harbor under the DMCA:

  • The OSP must designate an agent to receive notifications of claimed copyright infringement
  • The OSP must identify its agent on its website, and provide contact information for the purpose of delivering notice
  • The OSP must register its designated agent with the U.S. Copyright Office
  • The OSP should publish to its website a DMCA/Copyright Policy that includes a procedure for notices and takedowns
  • The OSP must publish a Repeat Infringer Policy on its website

A Safe Harbor Isn’t a Cure All

A safe harbor under the DMCA does not protect from liability for all claims. For example, a DMCA safe harbor will not safeguard against copyright claims brought under a foreign country’s laws, liability arising from the OSP acting in concert with its users to create infringing content, or from liability for copyrighted content for which the OSP is at fault. Nor does a DMCA safe harbor protect against a broad range of other claims, like:

  • Trademark infringement or unfair competition under the Lanham Act
  • Misappropriation of trade secrets and related claims
  • Breaches of confidentiality
  • Invasions of privacy
  • Libel and defamation

DMCA-Compliant Policies and Protocols May Be Helpful in Other Areas

While an OSP’s DMCA policies and protocols are not a cure all, they may be also helpful in blunting claims arising outside of copyright, or at least in providing an avenue for early notice that there is a problem. For example, a party who believes an OSP has been used to publish defamatory material may utilize the OSP agent to provide notice of a problem and privately, to request removal of the offending material. Or a business may use the contact to advise that someone has knocked off its trademark to promote counterfeit goods on an OSP’s website. A DMCA policy should therefore be written at least cognizant of the fact that it can do more than just address allegations of copyright infringement. 

Talk with Experienced Counsel

Intellectual property is a complex and dynamic area. At Baker Jenner LLLP, our team of experienced attorneys provide guidance for a wide range of businesses seeking to protect their assets and prevent liability. Because for us, Your Success is our Business™. Contact Baker Jenner to schedule a consultation.

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