The Digital Millennium Copyright Act enables copyright holders to monitor the Internet for the presence of products or materials that infringe upon their intellectual property rights and to notify Internet service providers of the infringement.
These notices, called DMCA take-down notices, are fairly straightforward to prepare and send to ISPs. DMCA take-down notices inform the ISP of the nature of the violation and give it the option of removing the material from its service or network.
Companies and individual intellectual property owners can use DMCA take-down notices to encourage ISPs to remove infringing material such as smart phone and tablet apps, pictures, videos and written material.
The law also covers Internet companies that serve as virtual marketplaces, such as Amazon and YouTube, and payment services like PayPal.
Many of these companies make available on their websites notice forms for DMCA take-downs. These notices are often not limited to copyright infringement, but also provide a means for notifying the Internet marketplace company of other types of infringement, including patent, trademark and trade dress.
No matter what type of intellectual property is at stake, IP owners should take advantage of DMCA take-down notices to give the ISP or retail marketplace a full picture of the violation, and the means to determine whether the material infringes on IP law.
Case law protects IP owners who use the DMCA for legitimate purposes and shields them from exposure to lawsuits, such as claims of interference with contractual relations. But if an IP owner knowingly and intentionally makes misrepresentations in the DMCA take-down notice or otherwise acts in bad faith, there is a risk the company could be held liable for those acts.
-- Nicholas Bell
Meyer, Unkovic & Scott
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