Commerce Releases DMCA Takedown Do's and Don'ts

Issues Voluntary 'Best Practices' for Notifications
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Participants in the Department of Commerce's DMCA Multistakeholder Forum have come up with a list of "good, bad and situational" practices as they pertain to notice and takedown processes; those are the processes, established in the Digital Millennium Copyright Act (DMCA), for identifying and removing pirated copy from the Web.

The forum was the handiwork of Commerce (through its National Telecommunications & Information Administration) and the U.S. Patent and Trademark Office (USPTO).

Commerce launched the effort in March of last year, bringing together Internet service providers, content owners, public interest groups and others in its ongoing effort to come up with voluntary best practices, or even agreements, for protecting information online.

The result of the DMCA-targeted forum was a list of best practices, released with the caveat that they create no legal right or obligation, and are not a concession of any policy position, which the stakeholders said they do not intend to resolve in the best practices.

Among the don'ts for those receiving the notices are hiding contact information for submission of takedowns, requiring submitters to watch ads as a pre-condition to submitting a takedown notice and using stigmatizing language in connection to the notice. The do's include help buttons and instructions, avoiding settings that would disable auto-completion of submissions and making it easy to correct mistakes in submissions.

For those sending the notices, don't's include falsely claiming they are authorized to act on someone else's behalf, using the notices to harass and submitting new DMCA takedown notices for a URL where the rightsholder knows the allegedly infringing material was reposted due to a legitimate counter notice. The do's include only submitting requests for copyright violations, rather than trademark, defamation or privacy issues.

“The multistakeholder forum tackled sensitive issues in a constructive and cooperative way," Shira Perlmutter, chief policy officer at USPTO, said. "The group’s agreement on a set of good and bad practices shows that progress can be made in this area and should be especially helpful for small businesses and individuals with less experience operating within the system."