Uses and misuses of the digital millennium copyright act
Back in 1998, Congress enacted a law known as the Digital Millennium Copyright Act, or DMCA, which forms the backbone of the “copyright strike” system you might know from YouTube or other platforms. Under the DMCA, service providers like YouTube or Spotify, as well as distributors like TuneCore or DistroKid, are shielded from liability for copyright infringement in relation to the works they distribute as long as they satisfy certain requirements in the law—i.e., in general, they have to have a system for the submission of “take-down” requests by people who think the works the services are distributing violate their copyright interests, as well as a system for the submission of “counter-notices” for people who think their works were removed improperly. As long as the notices contain the information listed in the law, the service providers must promptly remove content in accordance with take-down notices and reinstate it in accordance with counter-notices. It is supposed to be a rubber stamp process. Under the law, if the service providers don’t follow these rules, they lose their immunity and assume responsibility for infringing content.
The system makes sense, fundamentally. These platforms ingest and distribute massive amounts of content, and they can’t be in the business of vetting all uploads against a boundless universe of prior art to determine whether the uploads are infringing. At the same time, it wouldn’t be fair to let them ignore good faith infringement claims either. The resulting take-down notice and counter-notice procedure, when utilized correctly, can be an extremely useful tool to parties asserting or defending against claims of copyright infringement.
Unfortunately, anecdotally, it appears that many providers have stopped consistently removing content uploaded to their services despite receiving a compliant take-down request and reinstating content previously removed despite receiving a compliant counter-notice. The explanation, perhaps unsurprisingly, appears to be the commercial significance of the users on either end of the dispute to the service providers. If a major label wants its song on or your song off of streaming services, for example, the services will generally comply irrespective of the DMCA’s requirements. If you’re an independent artist, the streaming services will probably care much less about your preferences. Needless to say, this can be extremely frustrating if you’re an independent artist with a meritorious claim of Infringement or a defense to someone else’s claim in that regard.
As service providers behave less and less predictably with respect to DMCA issues, it is more and more important to involve knowledgeable lawyers in the process early on. We routinely form creative and powerful strategies to get clients what they need when it comes to DMCA matters and copyright claims generally, and would be happy to assist you in this area if needed.