Some Love For The DMCA

By February 18, 2012

I’m not one to favor the stifling of creativity and social advancement, but as a lawyer to uses the Digital Millennium Copyright Act (DMCA) to protect his clients, I think it’s important to acknowledge that laws that protect copyrights on the Internet in appropriate circumstances are something to be embraced by the online community.

Take, for example, the following situation:
You’re an online marketer. You sell information products, and with your experience and reputation you’re able to command a premium price. It’s taken years of experience and a significant number of hours (if not months) to develop your content, and there’s nothing else like it out there on the market. You’re smart, so you have appropriate Terms of Use on your website, and you have a click-wrap agreement or copyright notice on your products.

Suddenly, through your trademark monitoring service, you identify an individual who is selling copies of your products online at a discount off of your established retail price. This is costing you business, and also harming your reputation because their chosen methods of distribution are, shall we say, not the best.

Sure, you’ve got the contracts and documentation in place to protect your rights, but immediately this won’t do you any good–tracking people down and instituting enforcement actions take time. Ultimately you do want to hold them accountable, but in the meantime you just want the unauthorized sales to stop as soon as possible.

This is where the DMCA comes into play, and serves a very valid interest protected under United States copyright law.

The DMCA allows copyright owners to essentially compel (due to the penalties in place) “internet service providers” (defined broadly in the statute to include search engines, forums, sharing sites and several others) to remove content from their servers that infringe the owners’ exclusive rights. Now, an appropriate DMCA notice should include sufficient information to give the ISP a reasonable degree of certainty that the claim is valid, and if it does then the ISP must act quickly to remove the infringing material from its site. This requirement is intended to prevent the types of overreaching that have caused so much backlash in the online community.

Does it always get followed by both parties (the claimant and the ISP)? No, of course not, and that’s where the problems arise. However, when used appropriately, the DMCA provides some significant benefits even to the smallest of online entrepreneurs.