Updated: Jul 15, 2020
By John Alec Stouras
The new pandemic world we live in has reminded many entrepreneurs to keep an up-to-date web presence, which usually involves integrated user content features (e.g., forums), whether that be through video postings, keeping your web page up-to-date, or creating podcasts. These are all great steps to gain a media presence for any business venture. Often the issue arises when users you have on your webpages begin to post material that infringes on another’s copyright. Let’s start with an example. Maybe a customer you have on a forum posts video clips of a film owned by Disney. The owner of that IP likely will send a takedown request. This is a relatively simple example of showing that you may end up with you drawing content from sources online, as it is relatively easy to do: copy . . . paste . . . repeat. This seems like a lot more trouble than you had bargained for when beginning your business enterprise in a digital space.
Often, people end up using someone else’s intellectual property inadvertently in their promotional materials and content. This can lead to some severe legal problems. There is something to be mindful of when using content that may be owned by other companies and people—the DMCA (Digital Millennium Copyright Act of 1998). The DMCA has one of many ways to protect copyright owners, known as the takedown request. The takedown and notice system protects business owners running websites and the copyright holder.
What are the DMCA, A Takedown Request, and Intellectual property?
The Digital Millennium Copyright Act of 1998, simply, protects Internet Service Providers (aka ISP’s, e.g., YouTube, Facebook, forum pages, etc.) and Internet Access Providers (Comcast, etc.) from defamation claims if they provide a takedown and notice format for a party who feels that another party (in our case: may even be your business) has used their material without authorization. Copywritten material can be anything from a picture, a video, a song, or even a short movie clip. The takedown and notice allow the owner of a copyright to send the hosting platform (ISP) a message that the video includes their copywritten material and that it was unauthorized and must be taken down.
A DMCA takedown notice only needs six elements: A name and signature of the owner of the content, the content itself, the link of where the content is located, the contact information of the owner of the content, a good faith statement by the owner, and a statement about a penalty of perjury. In general, DMCA takedown requests do not have a model, and can look however they want to, but need to include the six elements above.
To solve all of the confusion around intellectual property (commonly shortened to “IP”), IP is a type of property that includes certain kinds of creations by humans that use a medium. The three large classes of IP are copyright, trademark, and patent. Concerning the DMCA takedown notices, we are mostly talking about copyright and trademark. Copyright typically involves a person’s protected works (audio clips, written literature, pictures, photoshop, video, etc.). Further, a trademark protects someone’s design that identifies its products and services. A typical example of a trademark is a logo and a slogan. There are many nuances about IP that are difficult to understand, especially with patents that protect types of inventions. Notwithstanding all of the IP talk, the important takeaway is that you, as a small business owner, need to know is that people’s digital and tangible creations can be protected by IP law.
Using public domain content is generally acceptable. However, if someone has copywritten anything and a user uses it without authorization, it can be a little bit of a problem.
How is a DMCA Takedown Request Different from a Cease and Desist Letter?
The truth is, there isn’t a massive difference as they fundamentally deal with similar things. One of the significant similarities between takedown requests and cease and desist letters is stopping an IP infringer from using content they should not have been operating in the first place. Both serve as notices under the DMCA and act as warning signs that penalties such as legal action could follow if an infringement of their intellectual property does not cease. A big difference is the method of how the information is received. A DMCA Takedown Request is given to the ISP (as discussed earlier) while a cease and desist letter is usually sent to the party. The rub is that either way, you are on notice that you may have infringed on someone’s intellectual property. On the other hand, that someone is put on notice of them infringing on your intellectual property rights.
Oh No . . . I Think I Saw One Of Those, Once
They have been gaining severe press coverage recently, but they have been occurring under our noses for a very long time. Check out this DMCA Takedown notice of a popular children’s game involving Disney, Club Penguin. This example is a perfect one of showing how the impacts of a DMCA takedown notice can shutter an operation. A big issue was Club Penguin Online was not being moderated by its staff in an effective way. Further, the original Club Penguin was owned by Disney, who purchased the game in 2007 and shut it down in 2017. Therefore, Club Penguin Online infringed on Disney’s IP. However, DMCA takedowns have long-lasting impacts. In the very same article, a Club Penguin administrator states that “If anyone does try to revive the game, it’ll be extremely difficult now as you will have to worry about Disney . . .” It is always important to be aware of the fact that you might be infringing on other companies’ IP.
If someone has filed a DMCA takedown notice on the content that you have been posting on another site, no need to fret, as users always have a couple of options. As the Electronic Frontier Foundation (EFF, a digital rights advocacy group based in San Francisco) explains: a user can either accept the takedown request and have their allegedly infringing content taken down, dispute it via the ISP’s framework, and/or file a DMCA Counter-Notice (for more information on the EFF’s article, click here). Quite simply, the counter-notice is a way to say that the material was misidentified or was mistakenly taken down. This step is serious because if the alleged rights holder wants to keep the content taken down, they will need to initiate legal action.
If, as it is more likely the case, you are the small business hosting another user who is posting content that is infringing on another person’s copyright, then it is essential to know that there will be a takedown and notice mechanism that will be at play in your online business. You likely will be interacting with both the user and the copyright owner. The good news is you will not be automatically subjected to a lawsuit between those two parties. The main idea is that you’ll have to make sure that you understand the takedown request process occurs through your site. ISPs have a lot of discretion here and can choose to keep the post up or take it down. However, there are still consequences for keeping infringed content up, and it is essential to remember that.
This Is A Lot . . . How Do I Avoid Receiving A DMCA Takedown Request?
The idea is that you do not want to find out that a takedown request has been submitted against you. Just like the elements, there is no 100% full-proof way to avoid a takedown request except by using the content you created.
Therefore, there is only a two-word answer: Be Mindful! Before using content to post on another site, even if it’s trying to promote your own business there, try always to find out if you are using someone else’s intellectual property that is protected under the DMCA. Business News Daily has created a couple of steps for a small business owner to see if they are potentially infringing on someone’s copyright. For more information, click here. A good rule of thumb to follow is if it looks as if someone else created it and intends for it not to be used by anyone else without their permission, do not touch it. There are dire consequences for an intellectual property rights violation, and it often means financial damages, and could even result in criminal charges.
Nevertheless, the easy way to not infringe on another’s IP is to create content yourself when posting to another site! Though painstaking, there are a lot of great reasons why you should make art on your own. It is not only meditative, but it is also generally free, except for supplies, and it gives you a certain feeling of pride as well as skills development. Or, if you just are not the artsy type, pay someone else to do it. The last way is to obtain the license from a copyright holder or to use royalty-free media that is often available online. There are many ways to find media that will not get you into legal trouble online; just begin the search!
Great, But What If Someone Infringed on My Content?
Maybe you are on the opposite side of the ball on this one. Let’s say you had copywritten content that you published and worked very hard on, and you magically found out that it appeared on another site. You may be pulling your hair and enter into a frustrated rage. This feeling might even be magnified by the fact that because many businesses are shut down, you have no idea how you are going to get in contact with anyone. But fear not, as there is still an answer!
The answer is: call an attorney! IP Attorneys around the nation help submit DMCA Takedowns notices, as well as claims via the Federal Copyright Act. They will help guide you through the process if you feel someone has infringed on your intellectual property rights (such as other possible legal remedies) To give you a leg up, use FindLaw to look at IP attorneys in your area.
Sending a DMCA Takedown notice may seem simple, but is not as simple as one might think and take on their own without an Attorney. As this blog post by the Founder of Minc Law shows (an Ohio based High Tech and Internet Law Firm), trying to send a DMCA takedown notice without an Attorney can be tricky and may get you into more troubles than when you started in the beginning.
Circling Back: Takedown Requests, Small Businesses, Pandemics, and You
The more Internet traffic we see, the more takedown requests we will come into contact with. The pandemic has highlighted the importance of keeping an up-to-date online presence through various websites. Nevertheless, the epidemic has also highlighted the importance of being aware of where you draw content from and how you use it. Being mindful and seeking counsel when you may have stumbled upon a legal issue are of the utmost importance throughout the business development process. Further, if you own a site where people can publish their content, keeping in mind that the takedown request process and how you may end up receiving them through your website is important. Keep in mind any local IP counsel you may need to contact. Top of mind awareness is critical, just in case a problem ensues.
It is still important to remember to have fun! Creating something new is not easy, and it takes time and hard work. Even so, it is enriching to let your entrepreneurial spirit shine. Just make sure you always have a little mindfulness in the back of your head, so you do not accidentally enter into legal trouble. As the old proverb goes, it is always easier to dig oneself into a hole than it is to dig oneself out one.
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