A “Takedown Notice” under the Digital Millennium Copyright Act (“DMCA”) exempts certain online service providers (“OSPs”) from liability for copyright infringing acts by its users, provided they meet certain conditions.
The definition of an OSP for purposes of the DMCA is quite broad: “a provider of online services or network access, or the operator of facilities therefor.” 17 USC §512(k)(1)(B). This would include most sites that offer user-generated content such as web hosting companies, blogging platforms, discussion forums, and so on.
Among the conditions that an OSP must meet to be exempt from liability are:
- No actual or constructive knowledge of infringing behavior;
- No financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity;
- When given a proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.”
17 USC §512(c)(1).
The notification referred to in (3) above has become known as the “DMCA Takedown Notice.” In brief, when an OSP receives such a notice from a copyright holder, it is required to remove or disable access to the accused material in order to avoid being held liable itself.
Compliance with the Takedown Notice will shield the OSP from being held as a contributory or vicarious infringer, and it also shields the OSP from liability to its members if the material is ultimately held not to be infringing. See 17 USC §512(g)(1) (“a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material…regardless of whether the material or activity is ultimately determined to be infringing”).