16 April 2003
Date: Tue, 15 Apr 2003 08:18:51 -0700 Sender: Law & Policy of Computer Communications <CYBERIA-L@LISTSERV.AOL.COM> From: Robert Cannon <rcannon101@YAHOO.COM> Subject: Re: DMCA notice -- what's required? To: CYBERIA-L@LISTSERV.AOL.COM --- David Lesher <wb8foz@NRK.COM> wrote: > A friend's ISP got served with an alleged DMCA > notice. > > But: > > a) It's email. > > b) It's not from a studio or counsel's IP but > "mightymouse.tronarx.net" (199.4.67.14) which itself > has bogus DNS. > > What is required? > > c) And another issue: Many many mail hosts bounce > mail with wonky DNS. What happens when the threat > notice is bounced midst the other 1000's per hour > that are? > > Where is the bar for ""notice""...? It is kind of hard to sign under oath an email notice. An ISP has the opportunity to register a DMCA agent with the LOC. To be valid, notices are to be served on the designated agent (and no one else at the ISP). See 17 USC 512(c)(3): 512(c)(3) Elements of notification. - (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (B) (i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. (ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A). END STATUTE QUOTE See Hendrickson v. eBay Inc., Case No. CV 01-0495 RJK (CD Cal. 2001): copyright owner's notice to Ebay was deficient where it failed to have a proper signature, failed to provide specific page where violation occurred, and failed to include good faith statement and statement that notice is accurate under penalty of perjury. The access provider is not required to sort through all content based on non-specific allegations. But Compare ALS Scan Inc. v. Remarq Communities Inc., 239 f.3d 619 (4th Cir. 2001): Plaintiff's defective notice made defendant aware that third party's use of system was infringing, thereby eliminating service providers immunity unless it acted. COUNTER NOTICE PROVISION 17 USC 512(g) (g) Replacement of Removed or Disabled Material and Limitation on Other Liability. - (1) No liability for taking down generally. - Subject to paragraph (2), 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 or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. (2) Exception. - Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider - (A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material; (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and (C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network. (3) Contents of counter notification. - To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following: (A) A physical or electronic signature of the subscriber. (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. (4) Limitation on other liability. - A service provider's compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C). ===== | Washington Internet Project | | www.cybertelecom.org | | cannon(a)cybertelecom.org | ********************************************************************** For Listserv Instructions, see http://www.lawlists.net/cyberia Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot Need more help? Send mail to: Cyberia-L-Request@listserv.aol.com **********************************************************************