Say you are a copyright owner, and you find that your content is being used without permission and not under any of the legal exemptions (like Fair Use) on somebody's blog. What can you do? Before the DMCA, the options were either nothing, or sue. The DMCA created a third way that makes it easier for the copyright owner to get infringing content removed and gives the infringer a chance to make good and avoid being sued.
Now say you are faculty or staff at an institution of higher learning. You are using a piece of copyrighted content in your online course without a license, and you either thought it was Fair Use or you thought you could get away with it (not a good plan.) One of your students works for a copyright law firm and, long story short, the copyright owner finds out. So what happens?
First, the copyright owner, or their legal representative sends a DMCA Notice, which is a letter that has to have certain pieces of information. Here is a sample DMCA takedown letter. If it does not contain all of the following pieces of information, it is not valid:
The SUNY Empire copyright officer (who is on record with the US copyright office so that they can be readily identified by any complaining party) receives the takedown notice. The copyright officer is legally obligated to take down the web page or course page that contains the allegedly infringing information.
The law does not allow the copyright officer to investigate whether the content is actually infringing first, or even contact the owner of the web page or course page! The allegedly infringing content is not merely excised; the whole page is taken down.
After the take-down has taken place, the copyright officer notifies the owner of the web page or course page.
The owner/maintainer of the web page or course page then has two options.
Do not under any circumstances rush a counter-notice, even if having your web page or course page down is disruptive. Consult SUNY Empire and/or SUNY counsel and your own lawyers first. Proceed methodically and make sure you can document that you actually had a license, that the content was mis-identified or not actually the property of the entity claiming to own its copyright, the complaining party was not a legitimate representative of the copyright owner, or that it really is a case of Fair Use (or another legal exemption.)
You issue your counter-notice to the complaining party, and you CC the SUNY Empire copyright officer, and whomever else your legal counsel says to. While the library is enthusiastically in favor of your defending your Fair Use rights, details about how to issue a counter-notice will not be provided in this tutorial, or by the library, because it is so important that you consult legal counsel to guide you in this process.
If you complied with the take-down, the copyright officer will direct your content, minus the allegedly infringing material, to be put back up.
If you issued a counter-notice, the copyright officer will put your content back up with the allegedly infringing material still in it, in 14 days. Things get foggy here, though - the institution's lawyers, or your lawyers, or a court injunction, may require that your content stay down longer.
If you complied with the take-down, the complaining party is satisfied and leaves you alone.
If you issued a counter-notice, the complaining party is entitled to sue you, but has only 14 days to issue the lawsuit. If they miss the 14 day window, they have to start the process again.
An advantage of the DMCA is that you do not just get sued automatically if a copyright owner thinks you are infringing their content. However there are still consequences of even a take-down that went smoothly:
Students who have received multiple valid DMCA takedowns are subject to the student conduct process. Any disciplinary action assigned to an employee shall be taken pursuant to the applicable collective bargaining agreement.
We will never report you for making a mistake and trying to correct it. We want you to catch your own mistakes and get help correcting them, before a copyright owner has a chance to issue a take-down notice.
We ask everyone in the SUNY Empire community to uphold a collegial attitude of helpful feedback. If you see something that you think is infringing, talk to the course owner or the web page owner about it and let them know that the library will help them either get permission to use the content, use the content in legal way, or find alternate content. If the person is not responsive, contact the library.
We uphold the law by supporting compliance. Nobody should be afraid of consequences for seeking support. Our only point of contact with the SUNY Empire copyright officer, who enforces DMCA Take-downs, is that we provide the copyright education that is required of people who have received a take-down notice.