How to Incorporate DMCA Language into a Website?

The Digital Millennium Copyright Act (or DMCA) is an update to US Copyright Law to address the new realities the Internet (and services made available on the Internet) present regarding copyrighted works.

Specifically, the Internet presented a new risk for technology companies (called Service Providers), because such companies permit third-parties to post potentially infringing material on the Internet, exposing themselves to a “Contributory Copyright Infringement” claim, among other issues. Congress, with the DMCA, created what is called a “safe harbor” mechanism for Service Providers to avoid such claims, if Service Providers follow the right procedure and meet the conditions specified in the Act.

Therefore, if you are publishing a website or App, you really don’t care about DMCA unless you are enabling third-parties (i.e. members of the public, your visitors, clients and/or customers), to publish information on the Internet. If someone can post a picture, video, music or even text, then your website runs the risk of someone publishing copyrighted content, and that can get you and your website intro trouble, unless you can rely on the safe harbor provisions of the DMCA.

Note that there are many provisions under the DMCA and the legal issues can be somewhat complex. We strongly encourage you to talk with a Copyright Attorney to discuss how the DMCA may impact your business. For example, the DMCA has conditions on whether a Service Provider qualifies for the Safe Harbor Provisions of the DMCA. One of those conditions is, “the material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A).” (See 17 U.S. Code § 512(b)(2)(A)). In other words, if you permit your visitors to use AI tools to modify the content they post, you could be violating this one condition, and therefore eliminate your ability to take advantage of the Safe Harbor Provision of the DMCA.

Assuming you’re not doing anything to violate any conditions within the DMCA, it’s important to remember the following:

1. You must not have actual knowledge of the infringing activity, nor be aware of facts or circumstances from which infringing activity is apparent, otherwise you must act expeditiously to remove or disable access to infringing activity upon knowledge or awareness of such infringing activity.
2. You must “not receive a financial benefit directly attributable to the infringing activity” (See 17 U.S. Code § 512(c)(1)(B)).
3. You must identify a “Designated Agent” (See 17 U.S. Code § 512(c)(2)) with the Copyright Office (at dmca.copyright.gov) and on your website, which must include the name, address, phone number, and an electronic mail address of the Designated Agent. This law firm provides DMCA Agent Services, although it’s not necessary for you to involve an attorney if you are aware of all the legal issues.
4. You should include the appropriate “notice-takedown-putback” provisions in your Terms of Service on your website, to help ensure complaining parties, your customers, and your company, follow the legally required process.

This knowledge base article discusses the provisions to put on your website’s TOS. Another knowledge base article (TBD) talks about the legally required process.

Appropriate DMCA Provisions for the Terms of Service (TOS) of a Service Provider

We recommend the following language for the TOS of a Service Provider (the following is an example, and assumes you are using L4SB DMCA Agent Services — DO NOT simply copy the DMCA Agent Information, make sure to put the correct information for your circumstances).

Our Designated Agent for the purposes of submitting a claim of copyright infringement occurring on this website is:

Laurence S. Donahue, Esq.
Law 4 Small Business (L4SB)
6801 Jefferson St. NE, Ste. 220
Albuquerque,  NM  87109
Phone: 505-715-5700
Email: [email protected]

We require the following information to properly respond to a claim of copyright infringement:

* Your complete contact information (full name, mailing address and phone number).
* A description of the copyrighted work that you claim has been infringed.
* A description of the content on our website that you claim infringes your copyright.
* Information reasonably sufficient to permit us to locate the material on our site. The easiest way to do this is by providing web addresses (URLs) leading directly to the allegedly infringing content.

* A declaration that:
   ** You have a good faith belief that use of the copyrighted content described above, in the manner you have complained of, is not authorized by the copyright owner, its agent, or the law.
   ** The information in your notice is accurate.
   ** Under penalty of perjury, you are the owner or authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed.
   ** Your electronic signature or physical signature.

Please note that we will provide your name, contact information and the contents of your claim to the person (or entity) who posted the content you are reporting. If you are an authorized representative submitting a report, we provide the name of the organization or client that owns the right in question. For this reason, you may wish to provide a professional or business email address.

Upon receipt of a proper claim of copyright infringement as identified above, we will work to expeditiously remove or disable access to the claimed infringing material.

We require the following information to be deemed a proper counter notification (submitted to our Designated Agent identified above):

* Your complete contact information (full name, mailing address and phone number).
* Your electronic signature or physical signature.
* Identification of the content that has been removed or access disabled.
* Location where the content was located prior to being removed or access disabled.

* A declaration that:
   ** Under penalty of perjury, that you have a good-faith believe the content was removed or disabled as a result of mistake or misidentification of the content to be removed or access disabled.
   ** You consent to the jurisdiction of Federal District Court for the judicial district in which you are located in the United States, or if you are not located in the United States, for the Federal District Court over Bernalillo County, New Mexico.
   ** You agree to accept service of process from the person who submitted the claim of copyright infringement or an agent of such person.

Upon receipt receipt of a proper counter-notice, we will supply the person who provided the original claim of copyright infringement with a copy of the counter-notice, and we will replace the removed content or cease disabling access to the content not less than 10 business days, and not more than 14 business days, UNLESS our Designated Agent (identified above) first receives notice from the person who provided the original claim of copyright infringement that such person has filed an action seeking a court order to restrain the individual (or entity) in control of the alleged infringing content, from engaging in infringing activity related to the content located on our website.

Please update the above language to accommodate your specific processes and location. For example, your should change “Bernalillo County, New Mexico” to the county and state where your company is located.

Note there are many other processes outlined in the DMCA, and the above represents the bare minimum to maintain compliance with the DMCA to take advantage of the Safe Harbor Provisions within the DMCA.