Expanded Copyright (self-paced course)

Say you are a copyright owner, and you find that your content is being used without permission and not under any of the legal exemptions (like Fair Use) on somebody's blog. What can you do? Before the DMCA, the options were either nothing, or sue. The DMCA created a third way that makes it easier for the copyright owner to get infringing content removed and gives the infringer a chance to make good and avoid being sued.

Now say you are faculty or staff at an institution of higher learning. You are using a piece of copyrighted content in your online course without a license, and you either thought it was Fair Use or you thought you could get away with it (not a good plan.) One of your students works for a copyright law firm and, long story short, the copyright owner finds out. So what happens?

What is done by the complaining party (copyright owner or their authorized representative)

First, the copyright owner, or their legal representative sends a DMCA Notice, which is a letter that has to have certain pieces of information. Here is a sample DMCA takedown letter. If it does not contain all of the following pieces of information, it is not valid:

1. Signature (electronic counts) of the copyright owner or their autorized representative.
2. Identification of the work that is being infringed. Also, specifically, what part of the work, what material is infringing. It has to be identified well enough that the recipient will know it when they see it.
3. Identification and location of the specific material that is infringing. Has to be identified well enough that the recipient can locate it!
4. Contact information for the complaining party.
5. A statement that the complaining party believes in good faith that the material is being infringed - used without any legal exemption or authorization from the copyright owner.
6. A statement that the complaining party believes their notification is accurate and that they are authorized to act on behalf of the copyright owner, under penalty of perjury.

What is done by SUNY Empire's copyright officer

The SUNY Empire copyright officer (who is on record with the US copyright office so that they can be readily identified by any complaining party) receives the takedown notice. The copyright officer is legally obligated to take down the web page or course page that contains the allegedly infringing information. 

The law does not allow the copyright officer to investigate whether the content is actually infringing first, or even contact the owner of the web page or course page! The allegedly infringing content is not merely excised; the whole page is taken down.

After the take-down has taken place, the copyright officer notifies the owner of the web page or course page. 

What is done by the owner of the page with the allegedly infringing content

The owner/maintainer of the web page or course page then has two options.

1. Comply with the take-down. Remove the allegedly infringing content from the page (whether it was there legitimately or not) and let the SUNY Empire copyright officer know, so that the page can be put back up. The copyright officer will then notify the copyright owner or their representative, and that is the end of it.
2. Issue a counter-notice. This is another form letter that is composed and sent to the copyright owner or their authorized representative. If you ever need to issue a counter-notice, please use this Counter-Notice Generator from ChillingEffects.org. Be aware that your counter-notice is made under penalty of perjury, and also agrees to a jurisdiction under which your case, which can be both civil and criminal, will be tried. It will be the federal court in the federal court district where you live, or if you live abroad, in the district where SUNY Empire is located. There may be legal fees even if you win. There is no guarantee that you will win. (This is why their organization is called Chilling Effects! The DMCA has a way of suppressing even legitimate Fair Uses of copyrighted content.)

Do not under any circumstances rush a counter-notice, even if having your web page or course page down is disruptive. Consult SUNY Empire and/or SUNY counsel and your own lawyers first. Proceed methodically and make sure you can document that you actually had a license, that the content was mis-identified or not actually the property of the entity claiming to own its copyright, the complaining party was not a legitimate representative of the copyright owner, or that it really is a case of Fair Use (or another legal exemption.)

You issue your counter-notice to the complaining party, and you CC the SUNY Empire copyright officer, and whomever else your legal counsel says to. While the library is enthusiastically in favor of your defending your Fair Use rights, details about how to issue a counter-notice will not be provided in this tutorial, or by the library, because it is so important that you consult legal counsel to guide you in this process.

What the SUNY Empire copyright officer does next

If you complied with the take-down, the copyright officer will direct your content, minus the allegedly infringing material, to be put back up.

If you issued a counter-notice, the copyright officer will put your content back up with the allegedly infringing material still in it, in 14 days. Things get foggy here, though - the institution's lawyers, or your lawyers, or a court injunction, may require that your content stay down longer.

What the complaining party does next

If you complied with the take-down, the complaining party is satisfied and leaves you alone.

If you issued a counter-notice, the complaining party is entitled to sue you, but has only 14 days to issue the lawsuit. If they miss the 14 day window, they have to start the process again. 

An advantage of the DMCA is that you do not just get sued automatically if a copyright owner thinks you are infringing their content. However there are still consequences of even a take-down that went smoothly:

• Your content was taken down and stayed down for up to two weeks. This can be devastating in a live course (probably every section of a course.)
• Even a successful counter-notice in which you won your court case can be expensive.

Students who have received multiple valid DMCA takedowns are subject to the student conduct process. Any disciplinary action assigned to an employee shall be taken pursuant to the applicable collective bargaining agreement.

Your librarian is your ally in avoiding DMCA take-downs.

We will never report you for making a mistake and trying to correct it. We want you to catch your own mistakes and get help correcting them, before a copyright owner has a chance to issue a take-down notice. 

We ask everyone in the SUNY Empire community to uphold a collegial attitude of helpful feedback. If you see something that you think is infringing, talk to the course owner or the web page owner about it and let them know that the library will help them either get permission to use the content, use the content in legal way, or find alternate content. If the person is not responsive, contact the library. 

We uphold the law by supporting compliance. Nobody should be afraid of consequences for seeking support. Our only point of contact with the SUNY Empire copyright officer, who enforces DMCA Take-downs, is that we provide the copyright education that is required of people who have received a take-down notice.

Your librarian is also your ally in recovering from a DMCA take-down.

• We can help you verify the identity of the work that you were using and the legitimate copyright owner of that work
• We can help you decide whether you have a clear-cut enough case of Fair Use (or some other legal copyright exemption) to make it worth exploring with lawyers whether a counter-notice would be a good idea
• We can help you find a way to get a license, find a legal way to use the content, or find alternative content to put into your course after you have complied with the take-down.
• If the copyright officer or Human Resources directs you to receive copyright education after being involved in take-down notices, we are the ones who provide that education and certify that it is completed. We keep this confidential and only inform the office that required it that it is done. The certificate or badge you receive will be outwardly indistinguishable from any other "train the trainer" copyright certification.