Tips from the Abuse Department: DMCA Takedown Notices

May 7, 2013

If you are in the web hosting business or you provide users with access to store content on your servers, chances are that you're familiar with the Digital Millennium Copyright Act (DMCA). If you aren't familiar with it, you certainly should be. All it takes is one client plagiarizing an article or using a filesharing program unscrupulously, and you could find yourself the recipient of a scary DMCA notice from a copyright holder. We've talked before about how to file a DMCA complaint with SoftLayer, but we haven't talked in detail about SoftLayer's role in processing DMCA complaints or what you should do if you find yourself on the receiving end of a copyright infringement notification.

The most important thing to understand when it comes to the way the abuse team handles DMCA complaints is that our procedures aren't just SoftLayer policy — they are the law. Our role in processing copyright complaints is essentially that of a middleman. In order to protect our Safe Harbor status under the Online Copyright Infringement Liability Limitation Act (OCILLA), we must enforce any complaint that meets the legal requirements of a takedown notice. That DMCA complaint must contain specific elements and be properly formatted in order to be considered valid.

Responding to a DMCA Complaint

When we receive a complaint that meets the legal requirements of a DMCA takedown notice, we must relay the complaint to our direct customer and enforce a deadline for removal of the violating material. We are obligated to remove access to infringing content when we are notified about it, and we aren't able to make a determination about the validity of a claim beyond confirming that all DMCA requirements are met.

The law states that SoftLayer must act expeditiously, so if you receive notification of a DMCA complaint, it's important that you acknowledge the ticket that the abuse department opened on your account and let us know your intended course of action. Sometimes that action is as simple as removing an infringing URL. Sometimes you may need to contact your client and instruct them to take the material down. Whatever the case may be, it's important to be responsive and to expressly confirm when you have complied and removed the material. Failure to acknowledge an abuse ticket can result in disconnection of service, and in the case of copyright infringement, SoftLayer has a legal obligation to remove access to the material or we face serious liability.

DMCA Counter Notifications

Most DMCA complaints are resolved without issue, but what happens if you disagree with the complaint? What if you own the material and a disgruntled former business partner is trying to get revenge? What if you wrote the content and the complaining party is copying your website? Thankfully there are penalties for filing a false DMCA complaint, but you also have recourse in the form of a counter notification. Keep in mind that while it may be tempting to plead your case to the abuse department, our role is not to play judge or jury but to allow the process to work as it was designed.

In some cases, you may be able to work out a resolution with the complaining party directly (misunderstandings happen, licenses lapse, etc.) and have them send a retraction, but most of the time your best course of action is to submit a counter notification.

Just as a takedown notice must be crafted in a specific way, counter notifications have their own set of requirements. Once you have disabled the material identified in the original complaint, we can provide your valid, properly formatted counter notification to the complaining party. Unless we receive a court order from the complaining party within the legally mandated time frame the material can be re-enabled and the case is closed for the time being.

While it might sound complicated, it's actually pretty straightforward, but we urge you to do your research and make sure you know what to do in the event a client of yours is hit with a DMCA takedown notice. Just as we are unable to make judgment calls when it comes to takedown notices or counter notifications, we are also unable to offer any legal advice for you if you need help. Hopefully this post cleared up a few questions and misconceptions about how the abuse department handles copyright complaints. In short:

Do take DMCA notifications seriously. You are at risk for service interruption and possible legal liability.
Do respond to the abuse department letting them know the material has been disabled and, if applicable, if you plan to file a counter notification.
Don't refuse to disable the material. Even if you believe the claim is false and you wish to file a counter notification, the material must be disabled within the time period allotted by the abuse department or we have to block access to it.
Don't expect the abuse department to take sides.

As with any abuse issue, communication and responsiveness is important. Disconnecting your server is a last resort, but we have ethical and legal obligations to uphold. The DMCA process certainly has its weaknesses and it leaves a bit to be desired, but at the end of the day, it's the law, and we have to operate inside of our legal obligation to it.

-Jennifer