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DMCA-Takedown and Registration

—Daniel M. Levine

The Digital Millennium Copyright Act (the “DMCA”) permits Internet service providers (“ISP”) to escape copyright liability from materials its users post by designating an agent to receive notice for DMCA complaints on its website and with the Copyright Office. The DMCA is the mechanism by which websites such as Youtube.com, Facebook.com, and Reddit.com are sometimes able to stay out of federal court on copyright infringement charges.

Once a copyright holder (or its agent) submits a “Takedown Notice” to the ISP, the ISP will need to take the material down and notify the user that the ISP has received a “Takedown Notice”.  The user is then able to file a “Counter-Notice,” that only requires basic information, not a formal brief or legal argument.  Once a “Counter-Notice” is filed, the copyright holder has ten  to fourteen business days to file suit and inform the ISP’s DMCA Agent of the suit.

This relatively straightforward process, however, has one little wrinkle:

While the DMCA’s “Takedown Notice” does not require the copyright holder to have its copyright registered with the United States Copyright Office, the Copyright Act requires a copyright registration to file a copyright infringement action. 

Even though expedited services are available for obtaining a copyright registration, they are fairly expensive and still unlikely to garner a registration within the short window given to file suit.  Recently, in Schenck v. Orosz, No. 3:13-CV-0294, 2013 U.S. Dist. LEXIS 160690, 2013 WL 5963557 (M.D. Tenn.  Nov. 7, 2013), the court dismissed the plaintiff’s claims on copyrights that were not registered at the time the suit was initialized.

Having a copyright registration is the key to getting statutory damages (up to $150,000 per infringement, plus costs and fees) in a copyright infringement suit.  That a registration is required to complete and carry-out a “Takedown Notice” under the DMCA is only one more reason to register your copyrights and register them before problems arise.