How does the DMCA work?
28 January 2024 — A Discord user had asked how the US DMCA (Digital Millennium Copyright Act) works.
Disclaimer: This article is a reproduction of a Discord post I wrote in an informal capacity and thus will not have been fact-checked. Read this article with a critical lens (like you should with anything on the internet).
The DMCA (Digital Millennium Copyright Act) is a US law about copyright in the internet. It's a fairly big law and does a lot of things.
One of the most important things it does is give legal immunity for "intermediaries" from copyright infringement.1 An intermediary is a middleman. On the internet, this includes internet service providers (e.g. Verizon, Sky Broadband, Vodafone) and social media platforms (e.g. YouTube, Facebook, SoundCloud).
Legal immunity for an intermediary means you can't sue Virgin Broadband or Twitter for copyright infringement if someone used their internet services or website to pirate a video game or a film.
The logic for granting legal immunity is that intermediaries are like electricity companies. If someone uses electricity to cultivate drugs illegally, would it be fair to punish the electricity company?
In return for this legal immunity, intermediaries must respond to DMCA takedown notices. If you made a video and you saw someone posting your video without your permission on Facebook, you can send Facebook a DMCA takedown notice to take down the video. They must take it down because they will lose their immunity if they don't, and you can take Facebook to court.2
The UK has rules similar to those of the US, except the law is called the InfoSoc Directive.
The EU has stricter rules compared to the UK and the US. The Digital Single Market Directive only allows intermediaries to keep their legal immunity if:
They implement content filters (e.g. YouTube's ContentID system) to actively prevent pirated material from being uploaded to their website if they're a medium/big sized website, and
They comply with takedown and staydown notices. The difference between EU takedown notices and US ones is that if someone sends a notice, you have to take down the existing material and ensure that no one else can upload the same thing again.
This legal immunity is known as “safe harbour”
For an example of such a lawsuit, Viacom sued YouTube for around $1 billion in 2012 and they settled out of court. To prevent such lawsuits from happening again, YouTube introduced Content ID.