1999 Guidelines for Compliance with the Online Service Provider Provisions of the DMCA

IV. Notification Procedures

The Act provides for a notification procedure which must be followed in order to take advantage of the limitation of liability.

The procedure consists of the following basic steps:

1. Notice is sent to the service provider by the complaining party;
2. The service provider notifies the subscriber and removes or disables the allegedly infringing material;
3. The service provider provides a copy to the complaining party of a timely counter-notice from the subscriber and notifies the complaining party that the removed or disabled material will be restored in no less than 10 and no more than 14 business days unless the complaining party notifies the provider that it has sought a court order for injunctive relief;
4. The service provider restores the allegedly infringing material if it has not received a timely notice from the complaining party that injunctive relief has been sought.

More detail regarding the notification procedure appears below.

A. Notice from the Complaining Party to the Service Provider

To be effective, a notice must be a written communication to a service provider’s designated agent which includes substantially the following:

1. A physical or electronic signature of a person authorized to act on behalf of the owner;
2. Identification of the copyrighted work alleged to be infringed;
3. Identification of the material claimed to be infringing or which is the subject of infringing activity;
4. Information sufficient to allow the OSP’s designated agent to contact the complaining party (e.g., address and telephone and e-mail numbers);
5. A statement that the complaining party has a good faith belief that use of the material is unauthorized;
6. A statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner (17 U.S.C. § 512 (c )(3)(A)).

To be effective, a notice must contain substantially all of the information referenced above. If the notice provides the information required in (2), (3), and (4) above (related to the identity of the work, the identity of the specific material within a work alleged to be infringing, and information sufficient to allow a service provider to contact the complaining party), the service provider has an obligation to attempt contact with the complaining party and take other "reasonable steps" to obtain a notice that complies with all requirements. Thus, if a service provider has received all of the substantive information, it must attempt to obtain the following required information from the complaining party: a physical or electronic signature; a statement that it has a good faith belief that the use is unauthorized; a statement that the information is accurate; and, under penalty of perjury, a statement that he, she, or it is authorized to act on behalf of the owner (see (1), (4), and (5), above) (17 U.S.C. § 512(c)(3)(B)). If this information is not obtained after "reasonable" attempts, the service provider will not be considered to have actual knowledge of infringement or infringing activity and need not follow the remove and notify procedure described below.

B. Notice to the Alleged Infringer

A service provider may immediately disable access to or remove the allegedly infringing material or activity without liability to the subscriber, regardless of whether such material is ultimately determined to be infringing, if the service provider does the following:

1. Promptly notifies the subscriber that it has removed or disabled access to the material;
2. Provides the complaining party with a copy of the subscriber’s counter-notification (discussed below), if any, and informs said party that it will cease disabling access to the material or activity or replace it in 10 business days; and.
3. Ceases disabling access to the material or activity or replaces it not less than 10 nor more than 14 business days following receipt of the counter notice unless the service provider’s designated agent receives notice that the complaining party has sought a court order to restrain the subscriber from engaging in the alleged infringing activity (17 U.S.C. § 512(g)).

C. Counter Notice from Subscriber

Although the Act does not require it to do so, the service provider’s designated agent may inform the subscriber that he or she may submit a counter notification if there is reason to believe the notification is mistaken. A counter notice from a subscriber must be a written communication to a service provider’s designated agent which includes substantially the following:

1. The subscriber’s physical or electronic signature;
2. Identification of the material removed or to which access has been disabled;
3. A statement under penalty of perjury that the subscriber has a good faith belief that removal or disablement of the material was a mistake or the material was misidentified;
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District court (i) in the judicial district where the subscriber’s address is located if the address is in the United States, or (ii) in any judicial district where the service provider may be found if the subscriber’s address is located outside the United States (17 U.S.C. § 512(g)(3)).