Notifying the Infringers and Website Hosts
ONCE YOU IDENTIFY ANY COPYRIGHT infringements of your work along with the service providers making it available, the next step is notifying the site owners and service providers to take down this material or prevent access to it. The infringers must then respond immediately to take down your copyrighted material. While the service provider must do so to avoid liability, the person uploading the material and the company offering the infringed-upon material are still liable for any damages and profits. While you can do this yourself, a piracy protection service can draw on its own lists and algorithms to find the pirated copy and send out the takedown notices to the site owners and service providers on your behalf.
These service providers are like enablers, accomplices, or associates who are giving the actual infringers a platform to use in giving away or making a profit from copyrighted material. While they provide a channel for distributing the work, they may not be aware that the copyrighted work has been uploaded without permission, so they have an opportunity to escape liability if they have properly registered an agent with the Copyright Office to be in a public directory and receive notifications, and they promptly remove or deny access to this copyrighted material. However, if they don’t do either of these actions, they can then become liable for damages and profits, just like the company offering the infringed-upon material. Accordingly, it is important to monitor their response to a takedown request; if they don’t respond to quickly take down the material or deny access to it, they can be included in any litigation or criminal prosecution, along with the primary offender, since they are now knowingly aiding and abetting the act of piracy.
According to the copyright law, a notice to be effective must be in writing and include these key elements:
• a physical or electronic signature of the victim of the infringement,
• an identification of the copyrighted work or a representative list of such works and a request to remove or disable access to it,
• contact information so the service provider can contact you, such as an address, phone number, and email,
• if you are acting on behalf of the copyright owner, a statement that you have a good faith belief that the material is not authorized by the copyright owner and that you are authorized to act on behalf of the owner
Then, the service provider has to reply promptly to such a notification to avoid liability. More specifically, as provided for in Title 17, Chapter 512, (c)(3)(a and b) of the US Copyright Law (http://www.copyright.gov/title17/92chap5.html), the notification and response requirement is as follows. Again, you might refer to this code in your initial letter to such a service provider, and if they don’t immediately respond to take down or remove access, they will become liable, and you can use this information in seeking a settlement from them, or in including them in any litigation to claim damages and/or profits.
3. ELEMENTS OF NOTIFICATION. —
A. To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
iv. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
B. i. Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
ii. In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).