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What the Heck is DMCA? A Guide for the Layperson

by Susan Wade on February 26, 2010

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Recently, the DMCA, which stands for Digital Millennium Copyright Act, has been kicked up in several blogs and online news sites as it relates to Microsoft® and cryptome.org.  One thing we’ve found missing from a number of comments and articles is a description of what the DMCA is and how it works.  It’s a pretty simple process so we’ve outlined it below.

The DMCA is a law that was created in 1998 to protect against copyright infringement.  The U.S. Copyright Office provides a more thorough explanation of the law.

As a hosting company, we follow the process set out by the DMCA.  Here is a link to the complete DMCA: http://www.copyright.gov/legislation/hr2281.pdf

Digital Millennium Copyright Act (the “DMCA”) Process:

  1. Upon receipt of a Notice of Copyright Infringement (the “Notice”) that complies with the DMCA, a Web host provider (the “Host”) will investigate to determine whether it provides Web hosting services.
  2. If the Host is the provider, it must promptly notify its customer of the Notice.
  3. The customer may opt to: a) remove the alleged infringing content; b) resolve the matter directly with the complaining party; and/or c) file a counter-claim challenging the claim of infringement.
  4. If the customer removes the content; the Host notifies the complaining party and closes its files.
  5. If the customer and the complaining party resolve the matter, no action is taken and the Host closes its files.
  6. If the customer challenges the Notice by submitting a Counter Notification that complies with the DMCA, the Host is required to disable access to the allegedly infringing site for a period of “not less than 10 business days, nor [sic] more than 14 business days” (the “Challenge Time Period”). The complaining party must initiate litigation within Challenge Time Period.  Failure to initiate litigation will result in reactivation of the site at the end of the Challenge Time Period.
  7. The Host sends the Counter Notification to the complaining party. The complaining party must then either withdraw its complaint or file an “action seeking a court order to restrain the [customer] from the infringing activity” (the “Action”).  If the Host does not receive notice of the Action within the Challenge Time Period, the Host may then reactivate the site.  Additionally, during the Challenge Time Period, the customer may remove the allegedly infringing material.  If the customer removes the allegedly infringing material prior to the Host’s receipt of the Action, the Host may cease disabling access to the Web site.  If the complaining party provides to the Host notice of the Action, the Host notifies its customer of the Action and locks the services until the Host receives a court order regarding the disposition of the Web site.

For more information about how to avoid violating the DMCA check out the article “Before You Cut and Paste: Know Your Web Content Rights & Responsibilities!”

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    • marius

      You are wrong.

      The moment you receive a DMCA complaint, you're supposed to take down the content and notify the person that owned the site with the infringing content. He can file a counter claim and after that you can enable his site but no sooner than 10-14 days.

      That's why the DMCA is bad, it's a “notice and takedown” procedure, not a “notice and notice”, and it's bad because either way whether the complaint was founded or not, the content HAS to be taken down for several days.

      See one of the latest articles on Techdirt for a better explanation. It's a shame with all the lawyers your company has you still don't get something right

    • H. Le

      i believe this is incorrect (out of order). once you receive a claim, as the host, you are required to take down the infringing material (in this case, takedown the site) FIRST. Only then would you notify the customer that the site has been taken offline. You don't notify the customer, then wait for a counternotice, PRIOR to taking the site down.

    • lisaWestveld

      You're wrong! See http://techdirt.com/articles/20100226/180436832… for why you're wrong…

    • dmca process

      Good to learn about DMCA process.

      http://www.dmcanow.com/about-dmca.html

    • dmca process

      Good to learn about DMCA process.

      http://www.dmcanow.com/about-dmca.html

    • dmca process

      Good to learn about DMCA process.

      http://www.dmcanow.com/about-dmca.html

    • dmca process

      Good to learn about DMCA process.

      http://www.dmcanow.com/about-dmca.html

    • dmca process

      Good to learn about DMCA process.

      http://www.dmcanow.com/about-dmca.html

    • dmca process

      Good to learn about DMCA process.

      http://www.dmcanow.com/about-dmca.html

    • Nicky Helmkamp

      Thanks Susan for the killer breakdown of the process. I’ve been Googling for more explainations.

      I found this inforgraphic by Nexcess.net: http://blog.nexcess.net/2012/02/22/dmca-process-infographic-flowchart/

      It’s a good compliment to this article.