If you are a digital content creator in the US, whether it be through YouTube, Instagram or blogs, the Digital Millennium Copyright Act (DMCA) is important to you, as it governs what happens if you post content that may infringe on another person’s copyright. One way the DMCA can affect you is if you receive a DMCA takedown notice. This notice is fairly common for online content and serves as a request to remove your work because it allegedly infringes upon a copyright from an online platform. To file a takedown notice against you, someone must identify themselves as the copyright owner of the work that has been infringed upon, and they must have a good faith belief that your material has infringed upon that work. They will then send that notice to the internet service provider where your work appears.
Online platforms like Google, YouTube, Twitter and Flickr are given “safe harbor” from prosecution for copyright infringement as long as they follow specific guidelines. Once these websites have received the notice, they are legally obligated to remove the content and notify you that they have done so. Once you receive that notification, you have the option to file a counter-notice fighting the takedown with the service provider through some options discussed below, which the website will then deliver to the original filer. If the filer doesn’t reply within 10 days, the website can then restore the removed content.
There are several reasons why you might want to file a counter-notice in response to a takedown notice, the most common of these being that your work is considered fair use under the First Amendment, which will be discussed in more detail later. It may also be in your best interest to file a counter-notice because the DMCA is sometimes abused by corporations and big Hollywood studios, who have a vested interest in controlling online discussion about their product. This is especially true if the allegedly infringing content you have posted criticizes, parodies or mixes their content with other themes. These corporations will often have bots whose sole purpose is to file frivolous takedown notices to take these types of content down, even though they may be protected by the First Amendment. “That should be illegal!” you might say, and indeed, there are legal ramifications for filing frivolous notices. However, it is difficult to prove deliberate falsifications of takedown notices in court, especially since the law only covers deliberate falsification and not negligence (bots are unable to distinguish between copyright infringement and fair use). Therefore, it’s important for individual content creators like yourself to be aware of the potential for these abuses and to not be deterred from filing a counter-notice if you believe you’re following fair use practices. If the case does ultimately end up in court, it’s common for the corporations to relent, given the amount of DMCA takedown notices that are filed every year. Furthermore, you can always back down at any point if the cost isn’t worth it to you.
Different websites have different protocols for removing content that allegedly infringes on copyrighted material and have different procedures for you to follow once your content has been taken down. In this blog, we will examine these processes for YouTube and Instagram.
Content Removal on YouTube
YouTube will remove your videos for copyright infringement in cases where it triggers a match with YouTube’s “Content ID tool,” which is an automatic process that checks every video uploaded against a database of audio and video reference sources that have been submitted by copyright holders to detect infringement. If there is a match, the copyright holder can decide how to proceed – they can either have YouTube block your video, leave it up and track viewing statistics, or monetize it by adding ads to it. In most cases, the rightsholder will elect to set content that matches their copyright to be blocked automatically. As a result, it’s very likely no human was involved in the review of your video. This is why it’s important to submit a “dispute” notice to YouTube if you believe your video has been taken down wrongfully. When you submit a dispute, the rightsholder is notified and your video goes into their “review” queue to be examined. Once the dispute has been submitted, the rightsholder has 30 days to decide whether to reject the dispute and uphold their claim, or release it. If the rightsholder upholds the claim and your account is in good standing with YouTube, you may appeal the claim three times. After each appeal, the rightsholder has 30 days to either release the claim or issue a formal DMCA takedown notice.
If the rightsholder decides to issue a DMCA takedown notice, you must file a formal counter-notice. If you do not, YouTube places a “strike” on your account and requires you to complete a mandatory online class from its “Copyright School.” After 3 strikes, your account gets cancelled. If you do file a counter-notice, the rightsholder has 10 days to either release the claim or begin a lawsuit against you. Disputing a DMCA takedown notice comes with higher stakes than simply disputing a content ID match because if the rightsholder wants to keep the video down at this point, they have no option but to sue you. Accordingly, you should consider the following factors before deciding to dispute a DMCA notice. Assuming your content does use copyrighted material, you should analyze whether you may have the right to use the video under fair use. To do this, you should consider the nature of your use – transformative uses that add a different character or purpose to the original such that it’s something new is more likely to be considered fair use. Additionally, if your content is for non-commercial purposes such as education or research, courts are more likely to find fair use. The nature of the copyrighted work is also important – the use of material that is factual, such as news stories, is more likely to be considered fair than the use of purely creative works. Another factor that is considered is the quantitative and qualitative amount taken from the copyrighted work – if your content uses a large portion of the copyrighted work, or if the segment you used is the most important part of the work, courts are less likely to find fair use. Finally, courts will consider the effect of your content on the value of the copyrighted material in the market. If your work is a substitute for the material such that people will not need to buy the original after watching it, it’s unlikely to be considered fair use. An extreme example of this would be if you’ve uploaded a bootleg version of a movie. Similarly, if your content were to become widespread, would it harm the value of the original work?
If you do get sued, you should immediately seek legal counsel – lawsuits are expensive, and it’s possible you may have to pay for the other party’s attorneys’ fees if you lose. Even if you win, you may have to foot your own legal bill. Additionally, you may also be liable for any profits the rightsholder lost due to your video in the form of actual damages, as well as disgorgement of any profits you made from the video if you lose.
Content Removal on Instagram
You are only allowed to post photos and videos that you’ve either taken yourself, or that you have the right to share. Anything else would be copyright infringement, subject to a few exceptions. As per Instagram’s Terms of Service, you may not post anything that violates someone else’s intellectual property, which extends to anything you’ve copied or collected from the internet without the proper rights.
There are several exceptions to this, the first being that you may share other people’s content if it’s through Instagram’s built-in features including Facebook sharing, Messenger sharing and Direct Messaging functions. However, if you take a screenshot of a post or use a third-party app to repost it, you must get permission from the content creator, even if you’ve credited them in the post and aren’t making any money off of it. You may point to the myriad of accounts on Instagram that curate the content of others by reposting them with perhaps a line of credit but often without their explicit permission. This may not necessarily be copyright infringement. First, the nature of the original post must be examined. Copyright requires a minimum amount of creativity, so a post that simply says “Happy Birthday,” or something comparably common would not be copyrightable. If the original content is copyrightable, fair use defenses may still apply. It’s not exactly clear how much additional content would have to be added to make the use transformative, but it’s theoretically possible that curating a collection of other people’s work is fair use. For example, an artist printed out the Instagram posts of other people onto canvases and sold them for thousands of dollars. When he got sued, he claimed fair use because the canvases included not only the original content, but also user comments, likes and other elements that “have become iconic elements of the modern internet.” In that case, the judge ruled that the work wasn’t transformative enough to qualify as fair use but left open the possibility that the transformative works defense could apply to Instagram content.
To avoid copyright infringement on Instagram, you should be cautious posting content you’ve found online. While many online photos are available for free commercial use, you should check the site you obtained the image from, just to be sure. As a rule of thumb, it’s best to assume that every image found online is copyrighted. This is because a copyright notice isn’t legally required to notify others of copyright ownership. If a picture is copyrighted, some uses may be allowed but others may not be, and you should check this before using the image. Even if you make an addition to an image (by adding a filter, for example), it may not necessarily relieve you from potential liability, so it’s good practice to always obtain permission. As you build your social medial platform, you should also remember that you are liable for what you upload, even if you hire a social media professional to choose the images. Thus, you should ensure that your contract with any consultants contain a provision that will indemnify you if an image they post is found to violate a copyright and you are required to pay damages.
* Boran Ding is an Associate Editor on the Michigan Technology Law Review.