Understanding Digital Millennium Copyright Act (DMCA)

Copyright Law

Several NFL teams and social media platforms have received notices from various record labels and music industry executives in recent weeks alleging unauthorized use of copyrighted music. The removal demands are primarily focused on music the NFL and individual team pages use for social media posts.

Like most businesses in the digital marketing age, sports teams more than ever must produce engaging digital content, which often means using the more current, popular music.  

The NFL has worked with the music industry for years to obtain licenses to play music during stadium games, but those licenses do not typically extend to online use. This means that even raw footage of a player listening to his personal playlist before or after a game can be the subject of a potential copyright violation. In this article, we discuss what DMCA is and how it can affect your copyrights.

What is the DMCA?

The Digital Millennium Copyright Act (or DMCA) is a copyright law enacted in 1998. The goal of DMCA is to balance the interests of copyright holders and licensees and prevent digital copyright infringement. DMCA in its original form was criticized by several innovators and scientists who felt that this type of limitation on content would inhibit digital and information technology growth.

Eventually, after many revisions, it was enacted. Several countries have similar versions of the act. This is the same law that permitted record companies and artists to sue software developers and individuals for pirating music in the early 2000s.  

Under the DMCA, the owner of a copyright can issue notices to web hosts or platform owners known as DMCA “takedown notices” as a way to request their material be removed from the internet if not appropriately licensed. The DMCA does not only assess digital copyright infringement issues but also reinforces penalties for violators.

Part of the importance of the enactment of the DMCA is that it protects internet service providers (ISPs) from claims of direct, contributory, or vicarious infringement for users posting infringing content, as long as the ISPs meet certain requirements. 

To require removal of your copyrighted material, a DMCA takedown notice should be issued to the site, company, search engine, ISP or web host informing them that the creative work they are hosting or linking to infringes on a copyright.

In most cases, the entity receiving the notices should immediately remove the offending material. If they fail to do so, you can make the same request to the Internet Service Provider (ISP) to remove the content. 

The type of copyrighted material that is covered under a DMCA takedown notice includes:

– Written works like books, articles, and blogs 

– Photographs 

– Artwork

– Videos, songs or audio files

– Software

Does the Work Have to be Registered to Utilize DMCA?

Thankfully, your work does not have to be a formally registered copyright in order to issue a DMCA notice. As long as your material is in a tangible form, it is covered as your intellectual property the moment it is created. Thus, anyone who posts an original written work, photo, or other media, whether registered or not, can send a DMCA notice for unlawful and unauthorized use of their content.

As an aside, while you are not precluded from using the DMCA, you should register the copyright as it will give you more options for the prosecution of violations.

For instance, it is possible that after issuing your takedown notice, you receive a counter-notification that says the initial receiver does not believe they violated copyright. In the event that you receive such a notice, you will have 14 days to file an official lawsuit for copyright infringement. Since copyright registration is required to file a copyright infringement lawsuit and claim monetary damages, registration is in your best interest. 

DMCA Exemptions

Safe Harbor

Safe Harbor is actually not an exemption to the DMCA. It refers to the provision of the DMCA which provides a liability shelter to ISP and other online service intermediaries, like most social media platforms, by exempting them from direct copyright infringement. 

ISPs can take advantage of these safe harbor provisions but in order to do so, must meet certain requirements and comply with the take-down notices. If they do not comply, they risk liability.

DMCA Safe Harbors are meant to enhance online development and improvement on the quality and variety of the services they provide before the Safe Harbor was enacted, the ISPs were regularly accused of copyright infringement just by virtue of retaining copyrighted content.

In some cases, the content was being used for the purpose of enhancing connection speed or hosting websites, while in others, the ISP was simply providing a link to a website that contained offending material. So, to avoid these issues, ISPs enjoy limited liability. 

Fair Use

The right to use copyrighted content without permission from the copyright holder under certain circumstances is known as “Fair Use.” Legally allowable justifications for use include:

– News reporting, commentary, and critique

– Research, teaching, and scholarship

The idea behind Fair Use is to promote creativity and education. To determine if a copyright work is permitted under Fair Use, consider the following criteria: 

– Nature of the copyrighted work/content

– Usage purpose of the copyrighted work (i.e., educational vs. commercial)

– Amount and substantiality of the portion used by the third person

– How the used will affect the market and the effect on the value of the copyrighted work

Conclusion

As you can see, the DMCA can be a great resource to protect your copyrighted material. Just remember to check Safe Harbor and Fair Use guidelines to ensure none apply. Additionally, as mentioned before, registering your copyright is your best line of defense to increase the likelihood that you are able to take your copyright violation claim as far as possible.

Unfortunately for these NFL teams, the use of copyrighted music would almost certainly not be covered by Safe Harbor or Fair Use exemptions. As such, it may be in their best interest to reach a wide-reaching licensing deal with some record labels and artists to avoid future copyright issues.

In fact, it was recently reported that the Arizona Cardinals have already reached a six-figure settlement and possible future licensing terms with at least one record company. As this issue continues to unfold it will have a long-lasting impact not only on team- and league-controlled content, but for your business as well.

Contact Counxel Legal Firm

The above list is not exhaustive, and you may want to include other elements in a new-hire packet depending on your situation. If you would like to talk to an attorney about what a new-hire packet should contain or whether you need one at all, contact us at (480) 744-6621 or at request@counxel.com. Don’t forget to check out the good things that others are saying about the services they received from Timothy Coons on Google.

This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact request@counxel.com or (480) 744-6621 to request specific information for your situation.

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