DMCA Takedown Policy
Welcome to LuzFaltex's guide to the Digital Millennium Copyright Act, commonly known as the "DMCA." This page is not meant as a comprehensive primer to the statute. However, if you've received a DMCA takedown notice targeting content you posted on any LuzFaltex Community or if you're a rights-holder looking to issue such a notice, this page will hopefully help to demystify the law a bit as well as our policies for complying with it.
(If you want to submit a notice, you can Skip to the End.)
As with all legal matters, it is always best to consult with a professional about your specific questions or situation. We strongly encourage you to do so before taking any action that might impact your rights. This guide isn't legal advice and shouldn't be taken as such.
What is the DMCA?
In order to understand the DMCA and some of the policy lines it draws, it's perhaps helpful to consider life before it was enacted.
The DMCA provides a safe harbor for service providers that host user-generated content. Since even a single claim of copyright infringement can carry statutory damages of up to $150,000, the possibility of being held liable for user-generated content could be very harmful for service providers. With potential damages multiplied across millions of users, cloud-computing and user-generated content sites like YouTube, Facebook, or GitHub probably never would have existed without the DMCA (or at least not without passing some of that cost downstream to their users).
The DMCA addresses this issue by creating a copyright liability safe harbor for internet service providers hosting allegedly infringing user-generated content. Essentially, so long as a service provider follows the DMCA's notice-and-takedown rules, it won't be liable for copyright infringement based on user-generated content. Because of this, it is important for LuzFaltex to maintain its DMCA safe-harbor status.
DMCA Notices in a Nutshell
The DMCA provides two simple, straightforward procedures that all LuzFaltex users should know about: (i) a takedown-notice procedure for copyright holders to request that content be removed; and (ii) a counter-notice procedure for users to get content reenabled when content is taken down by mistake or misidentification.
DMCA takedown notices are used by copyright owners to ask LuzFaltex to take down content they believe to be infringing. If you are a software designer or developer, you create copyrighted content every day. If someone else is using your copyrighted content in an unauthorized manner on a LuzFaltex Community, you can send us a DMCA takedown notice to request that the infringing content be changed or removed.
On the other hand, counter notices can be used to correct mistakes. Maybe the person sending the takedown notice does not hold the copyright or did not realize that you have a license or made some other mistake in their takedown notice. Since LuzFaltex usually cannot know if there has been a mistake, the DMCA counter notice allows you to let us know and ask that we put the content back up.
The DMCA notice and takedown process should be used only for complaints about copyright infringement. Notices sent through our DMCA process must identify copyrighted work or works that are allegedly being infringed. The process cannot be used for other complaints, such as complaints about alleged trademark infringement or sensitive data; we offer separate processes for those situations.
How does this actually work?
The DMCA framework is a bit like passing notes in class. The copyright owner hands LuzFaltex a complaint about a user. If it's written correctly, we pass the complaint along to the user. If the user disputes the complaint, they can pass a note back saying so. LuzFaltex exercises little discretion in the process other than determining whether notices meet the minimum requirements of the DMCA. If is up to the parties (and their lawyers) to evaluate the merit of their claims, bearing in mind that notices must be made under the penalty of perjury.
Here are the basic steps in the process.
Copyright Owner Investigates. A copyright owner should always conduct an initial investigation to confirm bot (a) that they own the copyright to an original work and (b) that the content on the Community is unauthorized and infringing. This includes confirming that the use is not protected as fair use. A particular use may be fair if it only uses a small amount of copyrighted content, uses that content in a transformative way, uses it for educational purposes, or some combination of the above.
Copyright Owner Sends A Notice. After conducting an investigation, a copyright owner prepares and sends a takedown notice to LuzFaltex. Assuming the takedown notice is sufficiently detailed according to the statutory requirements (as explained in the how-to guide), we will post the notice to our public repository and pass the link along to the affected user.
LuzFaltex Asks User to Make Changes. If the notice alleges that the entire contents of a thread, post, or other content infringe, we will skip to step 6 and hide the entire thread or post expeditiously. Otherwise, we will contact a user who created the content and give them approximately 1 business day to delete or modify the content specified in the notice. We'll notify the copyright owner if and when we give the user a chance to make changes.
User Notifies LuzFaltex of Changes. If the user chooses to make the specified changes, they must tell us so within the window of approximately 1 business day. If they don't, we'll hide the content (as described in step 6). If the user notifies us that they made changes, we will verify that the changes have been made and then notify the copyright owner.
Copyright Owner Revises or Retracts the Notice. If the user makes changes, the copyright owner must review them and renew or revise their takedown notice if the changes are insufficient. LuzFaltex will not take any further action unless the copyright owner contacts us to either renew the original takedown notice or submit a revised one. IF the copyright owner is satisfied with the changes, they may either submit a formal retraction or else do nothing. LuzFaltex will interpret silence longer than two weeks as an implied retraction of the takedown notice.
LuzFaltex May Disable Access To the Content. LuzFaltex will disable the user's content if: (i) the copyright owner has alleged copyright over the user's entire content; (ii) the user has not made any changes after being given an opportunity to do so (as noted in step 4); or (iii) the copyright owner has renewed their takedown notice after the user has had a chance to make changes. If the copyright owner chooses instead to revise the notice, we will go back to step 2 and repeat the process as if the revised notice were a new notice.
User May Send A Counter Notice. We encourage users who have had content disabled to consult a lawyer about their options. If a user believes that their content was disabled as a result of a mistake or misidentification, they may send us a counter notice. As with the original notice, we will make sure that the counter notice is sufficiently detailed (as explained in the how-to guide). If it is, we will post it to our public repository and pass the notice back to the copyright owner by sending them a link.
Copyright Owner May File a Legal Action. If a copyright owner wishes to keep the content disabled after receiving a counter notice, they will need to initiate legal action seeking a court order to restrain the user from engaging in infringing activity relating to the content on our Communities. In other words, you might get sued. If the copyright owner does not give LuzFaltex notice within 10-14 days by sending a copy of a valid legal complaint in a court of competent jurisdiction, LuzFaltex will re-enable the disabled content.
What If I Inadvertently Missed the Window to Make Changes?
We recognize that there are many valid reasons that you may not be able to make changes within the window of approximately 1 business day we provide before your content gets disabled. Maybe our message got flagged as spam, maybe you were on vacation, maybe you don't check your email account regularly, or maybe you were just buys. We get it. Most of our communities will let the poster edit hidden content. However, if this is not the case, just respond to let us know that you would have liked to make changes and we will re-enable the content one additional time for approximately 1 business day to allow you to make changes. You must notify us that you have made the changes in order to keep the repository enabled after that window of approximately 1 business day.
We believe that transparency is a virtue. The public should know what content is being removed from a LuzFaltex Community and why. An informed public can notice and surface potential issues that would otherwise go unnoticed in an opaque system. We post redacted copies of any legal notices we receive (including original notices, counter notices, and retractions) at https://github.com/LuzFaltex/DMCA/. We will not publicly publish your personal contact information and will remove or redact personal information (except for usernames in URLs) before publishing notices. We will not, however, redact any other information from your notice unless you specifically ask us to. Here are some examples of a published notice and counter notice for you to see what they look like. When we remove content, we will post a link to the related notice in its place.
Please not that, although we will not publicly publish unredacted notices, we may provide a complete unredacted copy of any notices we receive directly to any party whose rights would be affected by it.
It is the policy of LuzFaltex, in appropriate circumstances and in its sole discretion, to disable and terminate the accounts of users who may infringe upon the copyrights or other intellectual property rights of LuzFaltex or others.
If you are ready to submit a notice or counter notice:
Learn More and Speak Up
If you poke around the internet, it's not too hard to find commentary and criticism about the copyright system in general and the DMCA in particular. While LuzFaltex acknowledges and appreciates the imporant role that the DMCA has played in promoting innovation online, we believe that the copyright laws could do with a massive overhaul. In software, we are constantly improving and updating our code. Think about how much technology has changed since 1998 when the DMCA was written. Doesn't it make sense to update these laws that apply to software?
We don't presume to have all of the answers. But if you are curious, here are a few links to scholarly articles, videos, and blog posts we've found with opinions and proposals for reform:
- YouTube's Copyright System Isn't Broken. The World's Is. (Tom Scott)
- Unintended Consequences: Twelve Years Under The DMCA (Electronic Frontier Foundation)
- Statutory Damages in Copyright LAw: A Remedy in Need of Reform (William & Mary Law Review)
- Is The Term of Protection of Copyright Too Long? (The 1709 Blog)
- If We're Going to Change DMCA's 'Notice & Takedown,' Let's Focus On How Widely It's Abused (TechDirt)
- Opportunities for Copyright Reform (Cato Unbound)
- Fair Use Doctrine and the Digital Millennium Copyright Act: Does Fair USe Exist on the Internet Under the DMCA? ( Santa Clara Law Review)
LuzFaltex doesn't necessarily endorse any of the viewpoints in those articles. We provide the links to encourage you to learn more, form your own opinions, and then reach out to your elected representative(s) (e.g. in the U.S. Congress or E.U. Parliament to seek whatever changes you think should be made.
This content is based off the Github policy of the same name.