DMCA Compliance and Enforcement

Navigating Digital Copyright Protection and Platform Liability

The Digital Millennium Copyright Act fundamentally reshaped copyright law for the digital age, creating both obligations and protections that affect content creators, online platforms, and technology companies. The DMCA's safe harbor provisions shield qualifying platforms from liability for user-posted infringing content, while its notice-and-takedown procedures give copyright owners tools to remove infringing material without litigation. The anti-circumvention provisions protect technological measures that control access to copyrighted works. This practice helps clients on all sides of DMCA issues navigate this complex statutory framework effectively.

Safe Harbor Compliance for Platforms

Online service providers can qualify for DMCA safe harbors that limit liability for user-posted infringing content, but qualification requires strict compliance with statutory requirements. Platforms must designate an agent to receive takedown notices and register that agent with the Copyright Office. They must adopt and reasonably implement policies for terminating repeat infringers. They must accommodate standard technical measures used by copyright owners to identify and protect their works. Platforms must respond expeditiously to valid takedown notices by removing or disabling access to identified material. They must not have actual knowledge of infringement or be aware of facts making infringement apparent. Counsel helps platforms establish and maintain compliant programs that preserve safe harbor protection.

Takedown Notice Practice

Copyright owners use DMCA takedown notices to remove infringing content from online platforms without the expense and delay of litigation. Effective takedown practice requires notices that contain all statutorily required elements, accurately identify copyrighted works and infringing material, provide sufficient location information for platforms to find infringing content, and make appropriate representations under penalty of perjury. High-volume enforcers need efficient processes for identifying infringement, generating notices, and tracking platform responses. Follow-up addresses situations where platforms fail to remove content or where infringers repost removed material. Strategic decisions balance the value of removing specific infringement against the costs of notice generation and processing.

Counter-Notification and Put-Back Procedures

When content is removed pursuant to a takedown notice, the person who posted it may submit a counter-notification asserting that removal was improper. The platform must then notify the copyright owner, who has 10-14 business days to file a federal court lawsuit seeking an order to restrain the alleged infringer. If no lawsuit is filed, the platform must restore the removed content. Counsel advises content posters on whether counter-notification is appropriate, drafts compliant counter-notices, and advises copyright owners on whether to file suit to maintain removal. Understanding this process is essential for both copyright owners and content posters.

Anti-Circumvention Provisions

DMCA Section 1201 prohibits circumventing technological measures that control access to copyrighted works and trafficking in circumvention tools. These provisions protect DRM systems, access controls, and copy protection technologies independent of underlying copyright infringement claims. Violations can result in civil liability and criminal penalties. Exemptions exist for certain activities including security research, interoperability, and uses recognized by the Copyright Office triennial rulemaking. Counsel advises technology companies on whether proposed products or services implicate anti-circumvention provisions and how to structure offerings to avoid liability.

Platform Policy Development

Effective content moderation requires policies that go beyond mere DMCA compliance. Comprehensive copyright policies address how the platform processes takedown notices and counter-notices, what constitutes repeat infringer behavior and how it is tracked, how the platform handles disputed content, relationships with rights holders including trusted sender programs, and proactive measures to prevent infringement. Well-designed policies protect safe harbor status while enabling legitimate platform operations and minimizing abuse of takedown procedures.

Content Creator Protection

Content creators face both the risk of infringement by others and the risk of having their own content wrongly removed through DMCA abuse. Counsel helps creators register copyrights to enable enforcement, send effective takedown notices when their content is infringed, respond to improper takedown notices targeting their legitimate content, and understand their rights under the DMCA framework. Balanced advice recognizes that many creators are both copyright owners and content posters who may be on either side of DMCA disputes.