by Tara Montgomery Madison

“Someone is using my photos and website design on the internet without permission. What can I do?” These questions arise more and more with the increased use of the internet in business. The technical answer is that you have a potential claim for copyright infringement. Filing a federal lawsuit under the Copyright Act, however, is not a realistic option for many businesses, particularly when monetary damages may not be at issue. The goods news is that with the enactment of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C 512, victims of internet copyright infringement now have a more practical option for achieving the desired result – removing the infringing material from the internet – without filing a lawsuit. 

The DMCA gives internet service providers (“ISPs”) limited liability for copyright infringement in return for promptly removing copyright infringing material from the websites they host. The DMCA sets forth a notice and take down procedure that allows the copyright owner to directly notify the ISP that hosts the infringing party’s website of the potential infringement. 

Once the ISP receives a written notice containing 1) identification of the work claimed to have been infringed, 2) identification and location of the infringing material, 3) contact information for the copyright owner, and 4) statements that that claimant has a good faith belief that the use is unauthorized and the notice is accurate and submitted by a person with authority to pursue the copyright owners rights, the DMCA requires that the ISP act expeditiously to remove or disable able access to the infringing material in order to maintain its limited liability. See 17 U.S.C. 512(c).

However, as with any claim, a DMCA claim should be thoroughly investigated before a notice of infringement is issued. “Any person who knowingly materially represents [that material or activity is infringing] shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . or by a service provider, who is injured by such misrepresentation. . . .” 17 U.S.C. 512(f). 

The DMCA provides a more practical option for businesses to stop internet copyright infringement without having to incur the expense of filing suit. Moreover, results can oftentimes be achieved in a matter of weeks, as opposed to months or years.