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Protecting Digital Images in an Age of Oversharing

Protecting Digital Images in an Age of Oversharing
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Emma Gorski

Associate
In today’s digital world, information is more at risk than ever, especially when it comes to images, because of how easily these images can be stolen and reproduced. Whether it be an image of you or a product you’re selling, it is easy for anyone to take a “screengrab” of that image and post it on their website or social media account as if it is their own content. If you have a copyright interest in these images and someone else is using them as their own, you likely have an issue of infringement on your hands.
Luckily, many Online Service Providers (“OSPs”)[1] have a process for reporting such infringements to have them removed. However, not every website has a formalized process for removal of infringing material. In this case, you may send a takedown notice to the user’s OSP to remove the infringing content. As a preface, copyrights are governed by U.S. federal law and certain international treaties. In 1998, while technology was not as advanced as it is now, the federal government recognized a need to protect intellectual property that was at risk of being shared unlawfully on the internet. This led to the enactment of the Digital Millennium Copyright Act of 1998 (“DMCA”), which is codified under Title 17 of the United States Code. The DMCA provides protection to OSPs that may be unknowingly hosting infringing material while also giving copyright holders the opportunity to impute liability for infringement on an OSP that hosts the system or network where a user has posted infringing material.
Generally, under the DMCA, OSPs are not liable for hosting content that infringes on another’s copyright, unless they have some knowledge of the infringing material’s existence on their system or network. This knowledge must be either actual knowledge or knowledge that arises from circumstances which make the infringing activity apparent to the OSP. Fortunately for copyright owners, the DMCA provides a takedown process by which copyright holders may send notice to an OSP of the existence of infringing material that it may be hosting. An OSP that receives a notice pursuant to the DMCA has a duty to promptly “remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” If the OSP fails to remove the infringing content, it can expose itself to liability for monetary damages or injunctive relief.
In sending a notice pursuant to the DMCA, a copyright holder must ensure that a notice substantially complies with these requirements:
1. “A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”[2]
Any OSP wishing to receive protection under the DMCA must “designate an agent to receive notifications of claimed infringement…”[3] The OSP must then provide the U.S. Copyright Office with the designated agent’s contact information and make it available to the public on its website. The U.S. Copyright Office also has an online directory for DMCA designated agents for the public to access and search.
If you have noticed that someone has copied your intellectual property and shared it in a way that infringes on your copyright interests, contacting the user directly is often difficult and/or does not resolve the infringement. Because sending a takedown notice to the user’s OSP will open the OSP to liability for infringement if they do not act swiftly to remove the infringing material, sending a DMCA takedown notice to the infringer’s OSP is a good way to have the content removed and solve the infringement problem.
If you need further information regarding the DMCA or copyright issues, please contact Emma Gorski at Rapp & Krock, PC.
[1] Service provider is defined under the relevant law. “Service Provider” means “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” As used in section 512 of the U.S. Code, except for subsection (a), “service provider” means “a provider of online services or network access, or the operator of facilities therefor, and includes an entity described [above].” 17 U.S.C. § 512(k)(1)(A) – (B).
[2] Id. at § 512(c)(3)(A)(i) – (vi).
[3] Id. at § 512(c)(2); see https://www.copyright.gov/dmca-directory/ (Last visited: December 1, 2020).
DISCLAIMER
Rapp & Krock, PC presents the information in this article for general education purposes only. Although this article discusses legal issues, it is not legal advice. The law and the content of any linked website may have changed since this article was written, and Rapp & Krock, PC makes no warranty or guarantee about the continuing accuracy of the information presented. Use of this article does not create an attorney-client relationship, and Rapp & Krock, PC does not represent you unless and until we are expressly retained in writing.

Copyright © 2020 by Emma Gorski. All rights reserved.