DMCA Infringements: Much Ado About Copying?

In this explainer, we provide an insight into how the Digital Millennium Copyright Act came to be, how it affects us as Indian users of the internet and what we can do to peacefully coexist with DMCA.

27 July, 2021
6 min read

tl;dr

The exponential rise in content takedown orders on social media platforms due to the Digital Millennium Copyright Act, 1998 ( DMCA) infringements in the recent past makes one wonder what the DMCA is and how it works. In this explainer, we provide an insight into how the DMCA came to be, how it affects us as Indian users of the internet and what we can do to peacefully coexist with DMCA.

Background

On June 25, 2021 Twitter withheld the Twitter accounts of the former Minister of Information and Technology, Mr. R.S. Prasad and the Chairman of the Parliamentary Standing Committee on Information and Technology, Mr. Shashi Tharoor for about an hour on grounds of alleged copyright infringement. Among the content moderation practices of social media accounts, one of the most frequently used reasons for censoring of online content is copyright infringement, specifically, the Digital Millennium Copyright Act, 1998 of the United States of America (DMCA). According to Google’s Transparency Report of July 2021, 96.2% takedown complaints related to copyright complaints under the DMCA. Similarly, Twitter users across the country encountered a deluge of account restrictions notices based on copyright violations. According to Twitter’s Transparency Report, between July 2020 and December 2020, it has withheld 684.6k accounts due to copyright breaches.

Memes and GIFs have become almost an inextricable part of everyday conversations and to be aware of the intellectual property rights of each of these content can prove to be cumbersome. As such, you may have simply shared or forwarded an image or a song on your social media profile, completely oblivious to the copyright of that content but the proactive monitoring of most of the social media accounts is likely to flag that as a copyright infringement and withhold the post, or worse still, your account.

While this expansive sharing of content online has become the driving force of the internet, the need to protect the intellectual property of the creator of online content was felt globally. Thus, the World Intellectual Property Organization Copyright Treaty (WIPO) of 1996 obligated the member nations and signatories of WIPO to protect within their respective jurisdictions the copyright of any content that may have been created by citizens of a different country. This effectively means that the DMCA will be applicable and be at par with the domestic copyright laws of every member country.

In 2018, India became a member of the WIPO Copyright Treaty, thereby granting the same legal enforceability to the DMCA as India’s existing domestic laws. Hence, we as internet users in India are not only governed by the Intellectual Property Laws in India like the Copyrights Act, 1957 or the Patents Act, 1970 but also the Digital Millennium Copyright Act, 1998, as it applies to content originating from the USA.

Moreover, most of the popular social media platforms like Facebook, Instagram, WhatsApp, Twitter and even Google are registered in the United States of America. Accordingly, any copyright infringements recorded in any of these platforms will attract the wrath of DMCA for any offender, irrespective of their geographical location.

What content can a DMCA notice take down?

Since October 1998, the DMCA has acted as the overarching legislation to regulate the ethical use of content over the internet with the objective of preventing the abuse of any intellectual property rights. DMCA empowers users to approach any social media intermediary with verified requests to take down any content which violates their intellectual property rights. Most social media intermediaries maintain rapid response mechanisms to DMCA takedown notices but they also conduct their own due diligence before restricting any account or removing the content from their platforms. Additionally, social media intermediaries regularly deploy proactive monitoring measures through artificial intelligence or through expert oversight to identify potential copyright breaches on the websites and initiate appropriate actions against the alleged violators.

The evolving landscape of online content use, with increased automation in content moderation and the rising volume of requests from private users and governments has made DMCA takedowns error prone and susceptible to creating a chilling effect on the freedom of speech and expression. This must be juxtaposed with the John Doe orders or as they are known in India, Ashok Kumar orders.
John Doe orders are injunctions issued preemptively against unknown or anonymous violators to protect the copyright of any digital content, in case the creators apprehend a potential breach of their content. Since 2003, Indian courts have warranted such pre-infringement injunctions but time and again, Courts have cautioned against overbroad and excessive use of the John Doe orders. Narrowing the scope of such orders, the Bombay High Court in Eros International and Anr v BSNL & Others (2016) SCC OnLine Bom 6948 provided strict guidelines for implementing a John Doe order. These principles hold true for DMCA notices too. Social media intermediaries therefore must follow due process before acting on any copyright complaints.

What constitutes a DMCA notice?

A DMCA violation notice, while designed to safeguard the intellectual property rights of online creators, also runs the risk of excessively clamping down on the constitutional rights of freedom of speech and expression of the users. Hence, section 512(c)(3) of the DMCA crystallises the processes to legitimise a DMCA complaint. For a DMCA complaint to be deemed proper, it must abide by the following six prerequisites:

  1. It must be authorised by the signature of the complainant
  2. The allegedly infringed copyrighted material must be identified.
  3. The allegedly infringing material must be duly identified.
  4. Contact information of the complainant must be provided.
  5. A statement of good faith belief in support of the complaint must be provided.
  6. In case, the complaint is raised by a third party, a statement of accuracy that authorizes the sender of a complaint to act on behalf of the copyright holder must be rendered.

Additionally, every social media intermediary proffers a multi-tiered compliance mechanism for any DMCA complaint. For instance, Twitter states that they do not instantaneously act on a DMCA notice but does so only upon internal review and assessment and after providing due notification to the alleged violator. In India, Twitter did not act on 40 “suspicious” DMCA notices following their independent probe. The guiding principles for social media intermediaries are the international standards of fair use and free speech.

In spite of such bulwarks against overbroad censorship, the reality of content moderation practices continue to be egregious. On several occasions, counter notices against DMCA complaints are not issued or are significantly delayed. Further, the grievance redressal processes are often non-committal.

Do I have the right to appeal against a DMCA complaint?

The DMCA provides statutory instructions about appeal against any DMCA takedown notice. This is complemented by the fact that every social media platform also has a provision of counter appeals against any content removal or restrictions pursuant to a DMCA notice through established grievance redressal mechanisms. In India, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 necessitates social media intermediaries to provide a notice to a user before disabling access to their account, as well as an adequate and reasonable opportunity to dispute the decision to disable access.

How do I check if my content violates the DMCA?

The rising trend of DMCA violations on social media platforms can be attributed to exponential use of automation in content moderation which in turn helps in identifying multiple infringing content, thereby increasing the volume of takedown requests. According to Lumen Database, “​​The DMCA sits at the forefront of algorithmic law due to the potential it offers for automated enforcement of copyright at a large scale.”

However, with the mammoth corpus of content available and circulating online, encounters with copyright barriers are increasing. While the appellate process enables us to fight against unreasonable and unwarranted takedowns, we must take an extra precautionary step to avert any takedown at the very outset.

We are listing below some of the industry best practices to make our social media content complaint with the DMCA:

  1. Check out for the source of the content before forwarding or sharing, including whether it states “all rights reserved” or brandishes a creative commons licence”, thus conferring selective rights to copy, share and reproduce while retaining the copyright.
  2. Not all copyrighted content infringe DMCA. Political speeches, newsworthy material or content which have manifest fair use elements in them. If your content falls within these categories, a DMCA notice will not be applicable to them.
  3. Prevention is better than cure and more so if we have the tools to prevent it. Google suite products provides a Content Match Tool for Youtube which warns one against any potential intellectual property infringement. Similarly, a quick copy paste on any popular plagiarism checker before posting on Twitter, Facebook or Instagram can save us any unpleasant surprises.

While these steps are not entirely foolproof, they certainly mitigate the chances of any unwanted squabbles with DMCA. Another vital source to take stock of the DMCA takedown notice is the Lumen Database, an online repository that collates and tracks content removal requests to online service providers, including DMCA takedown notices.

Important Documents

  1. Shreya Tiwari, ‘Evolution of DMCA Notices: Trends and a Timeline’, Lumen Database, July 2, 2021 (link)
  2. The Digital Millennium Copyright Act, 1998 (link)

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