We’re going to talk about copyright infringement, specifically the Digital Millennium Copyright Act, which applies to the internet. We’ll talk about what it is, how to use it to your benefit if someone has stolen your content, and how to protect your website if you allows users to post comments on it.

Let’s begin with a bread and butter definition of copyright infringement. Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.

As far as terminology goes, “infringing” is used instead of “stealing” or “pirating” in the statute.

The idea behind copyright infringement is simple: If you create some work, you hold the rights publish and distribute that work. The copyright holder is typically the work’s creator, or a publisher or other business to whom copyright has been assigned. If you take someone’s content without their consent, you are committing copyright infringement unless you have some kind of fair use defense.

Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Copyright infringement disputes are usually resolved through direct negotiation, a notice and take downprocess, or litigation in civil court.

If someone makes a copyright claim, they are entitled to damages from $ 200 per image up to $ 150,000. You may also have to pay the other party’s attorney fees if you lose.

Shifting public expectations, advances in digital technology, and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize the service providers and software distributors. They are deemed to facilitate and encourage individual acts of infringement by others.

Estimates of the actual economic impact of copyright infringement vary widely and depend on many factors.

Now let’s segue into the Digital Millennium Copyright Act (DMCA).

What is the DMCA? It’s a United States copyright law that criminalizes production and distribution of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet.

It was passed on October 12, 1998 by the U.S. Senate and signed into law by President Bill Clinton on October 28, 1998. The DMCA extends the reach of copyright, while limiting the liability of the providers of online servicesfor copyright infringement by their users.

The DMCA also includes a safe harbor provision which protects websites from liability when it comes to copyright takedowns. For example, Facebook or any site that has user-generated content enjoys immunity from copyright infringement claims based on that user content, so long as they adhere to a strict compliance process.

Some websites are profiting from the violation of copyrights but because of this loophole they are not held responsible. For example, music companies have urged Google to prevent searches of copyright infringing material by sending them a torrent of takedown notices, but despite these efforts, many top search results on Google are still these materials.

There are three main abuses of the DMCA.

• First, fair use has been a legal gray area, and subject to opposing interpretations. This has caused disparity in the treatment of individual cases.
• Second, the DMCA has often been invoked overbearingly, favoring larger copyright holders over smaller ones.
• Third, the lack of consequences for perjury in claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement. This has been used by businesses to block out or censor competition.

Critical question: Can the DMCA be used preemptively to thwart people from stealing your content, or can it only be used after a violation to correct a wrongdoing?

It can only be used after your content is stolen, not before. So, if you find your content on another site, you can use what are called “take down procedures” in the DMCA to get it removed.

There are a lot of myths about copyright infringement that need to be dispelled.

The biggest myth is that you can take copyrighted material and post it on your site without running afoul of copyright infringement laws so long as you include a link back to the original source. While the web is a sharing environment, this is false.

To add insult to injury, a social media sharing button, like a Facebook, Instagram, or Twitter button does not alter this result. As chilling as this sounds, the existence of a social media sharing button is not a defense to copyright infringement.

What if you request permission from the content creator to repost their content and they say, “yes?” Be careful relying on an oral promise because the person could later deny it and then it turns into a “he said, she said” debate in court. Getting the creator’s consent in writing is a better practice but technically speaking, an email from the creator consenting to reposting the content still doesn’t satisfy the copyright infringement rules. But the content creator would be hard pressed to justify a copyright infringement claim after expressly consenting to its’ reposting in writing.