DMCA Takedown & the Digital Millennium Copyright Act

by Michael Roberts on January 11, 2013

What is the Digital Millennium Copyright Act (DMCA)?

The Digital Millennium Copyright Act (DMCA) is a copyright law of the United States that merges two 1996 treaties of the World Intellectual Property Organization (WIPO). Provisions are made therein to heighten the penalties for copyright infringement on the Internet. It was signed into law by President Bill Clinton on October 28, 1998 after passage by a unanimous vote in the United States Senate on October 12, 1998. Title 17 of the United States Code was amended by the DMCA to extend the reach of copyright while limiting the liability of on-line service providers for copyright infringement by their users.

The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of internet service providers and other intermediaries. It was adopted by the European Union in the Electronic Commerce Directive 2000; the Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

Use and Abuse of DMCA Take-Down Demands

Digital Millennium Copyright Act takedown demands can be an effective tool for the removal of unprotected, defamatory and fallacious speech from websites and from search engines for search results displayed as a result of searches on a particular subject, person or business. For the most part, search engines and Internet service providers are protected from liability for tort such as defamation and harassment as a result of another law called Section 230 of the Communications Decency Act (if defamation is provided by a 3rd party). This can be incredibly frustrating for victims of the abuse of this safe harbor, particularly in instances where malicious and fallacious reports have been posted on websites such as RipOffReport.com, thedirty.com and CheaterVille.com. In such instances, victims can take advantage of a DMCA take-down demands to both the websites displaying the offending material and the search engines. A word of warning though; if you direct such a take-down demand to websites with low value speech and poor social responsibility records, then you are effectively “telegraphing your punches”. In such instances, stealth might be your best friend, as such, it might be tactically and strategically prudent to limit your DMCA takedown demand to the search engines only. Let’s face it, if it is not on Google it may as well not exist no matter how damaging the allegations.

The safe harbor provisions of

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