U.S. Dept. of Commerce Releases Multistakeholder Guidance on DMCA Notice and Takedown Best Practices

Proskauer - New Media & Technology
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On Tuesday, the U.S. Dept. of Commerce’s Internet Policy Task Force released a guidance containing a list of best practices (and notable “bad” practices), all designed to improve the DMCA’s notice and takedown system for both senders and recipients of notices [See “DMCA Notice-and-Takedown Processes: List of Good, Bad, and Situational Practices”]. The document was developed as part of a multistakeholder forum held between rights holders, creators, service providers and consumer protection advocates, all of whom have an interest in an effective notice and takedown system that balances the interests of both rights holders and online services.

For example, some “Good Practices” for service providers include:

  • Making DMCA takedown and counter-notice mechanisms easy to find and understand.  Web forms should have clearly labeled fields, with help buttons and instructions.
  • Implementing efficient processes for receiving notices that are commensurate with the volume of claims (e.g., allowing multiple URLs to be submitted at one time).
  • Providing confirmation of receipt of a notice or counter-notice that includes a method for referencing past notices in further communications.

The document also offers good general practices for Notice Senders:

  • Taking reasonable measures to determine the online location of the infringing material and “appropriately consider” whether use of the material identified in the notice is unauthorized.
  • When using automated tools, conducting a human review of the site where the notices will be directed, as well as performing periodic spot checks to evaluate whether the automated search parameters are returning the expected results.

Lastly, the document offers guidance on “Situational Practices,” such as Trusted Submitter Programs, which provide efficiencies for rights holders who have a track record of submitting accurate notices.

At only 7 pages, the Dept. of Commerce document is certainly worth the read for both copyright holders and service providers. Improved notice and takedown practices can result in streamlined procedures, a better reputation in the online community, and fewer disagreements over posted content (which, will decrease the likelihood of litigation for copyright infringement or wrongful takedown notices).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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