Determining copyright on the Internet can be complex. The basic rule is that if you didn’t create a piece of content, then you need to make sure that it was published with a license that grants permission for you to use it. There are several exceptions to that rule: most notably fair use, but in general, publishers, including bloggers, should avoid using works with uncertain copyright status.
Of course, that’s easier said than done. Just because you find a photograph that appears to have a permissive license, it doesn’t follow that you’re safe. It’s entirely possible that a third party has taken someone else’s work and released it as their own.
For site owners who allow others to publish on their sites, the problem is compounded. It can be time consuming to ensure that every piece of content on a large site has the correct license.
If you inadvertently publish copyright infringing content on your site or blog, the first you’re likely to know about it is when the content is removed from the web by your hosting provider. You’ll also receive a notification from your host that they have been sent a DMCA Takedown notice.
The Digital Millennium Copyright Act is intended to protect content creators from copyright infringement. One of the tools it provides is the takedown notice. This is a standard legal letter the content creator sends to the hosting company. In almost all cases, the hosting company will remove the content and send you a notification. As you can imagine, there is considerable scope for abuse here, but often the notice will be sent in good faith.
You might be inclined to get angry with your hosting company, but there’s not a lot they can do about it. They aren’t making any judgment about whether the content really does infringe copyright. The DMCA grants hosts “safe harbor” status, provided they remove material when they receive a takedown notice. The alternative would be web hosting companies being responsible for every piece of infringing content on their servers, which most hosting companies could not survive.
The first thing is not to panic. If your site does contain infringing material, and it’s removed, then that’s almost always the last you’ll hear about it — especially if you’re a blogger with a small audience.
The DMCA Counter Notice
But what if you believe you have no infringing content on your site, or that the content removed is covered by an exception to copyright law like fair use? In that case, you have a decision to make. The DMCA includes a way for publishers to respond to takedown notices: the DMCA Counter Notice.
A Counter Notice, which you send to your web hosting company, asserts your right to publish the content in question. After receiving the Counter Notice, the hosting company must restore the content, unless the complainant sues you within two weeks.
You should be certain that the content does not infringe copyright before sending a Counter Notice, which is a legal document that states — under penalty of perjury — that you believe the content should not have been removed. You can get in a lot of trouble for sending a Counter Notice that you know to be false, not to mention that the Counter Notice may trigger a lawsuit that you would have to defend.
If you’re confident that the Takedown Notice is spurious or simply wrong, you should by all means send a Counter Notice, but if you have doubts about the true copyright status of the content, you should take care. In all cases, you will be safer if you seek legal advice.Posted in: General