DMCA: Copyright Protection in the Digital Age

The Digital Millennium Copyright Act (DCMA) of 1998 added new, streamlined protection for copyright owners and content creators in the emerging digital world, where suddenly everyone could publish content and in the process either maliciously or unknowingly infringe on the copyrights of others. A key part of the act for copyright owners is the content takedown provision, which offers a fast resolution process aimed at speedy removal of copyrighted content displayed online without permission. It allows copyright holders to get content removed without directly suing offenders, which is costly and slow.

For copyright owners, digital publishers, and anyone managing a website, a basic understanding of the DMCA is essential—and not all that complicated. Here, we provide a breakdown of DMCA and the scope of its copyright infringement prevention.

What is the DMCA?

The DMCA represents a broad response in the US to the myriad copyright issues that emerged along with the internet. The act implemented two international treaties from the World Intellectual Property Organization (WIPO). It was passed unanimously by the US Senate and signed into law in 1998.

This all came about in the internet’s “wild west” days of the 1990s, when suddenly music, software, and other content was being shared (or pirated) freely and widely on sites like Napster—completely beyond the control of copyright owners.

Several provisions of the DMCA strengthen copyright infringement prevention. The law criminalized online piracy, including using technology to circumvent digital rights management or DRM, and raised penalties for copyright infringement.

And as mentioned above, the DMCA provides content creators and copyright owners amore direct means of protecting their content and materials from unauthorized use, without resorting to prolonged court battles.

DMCA Safe Harbor

In another key part of the law, the DMCA exempts internet service providers and other intermediaries from indirect liability. Its safe harbor provisions protect ISPs, website hosts, search engines, and others that are not directly responsible for content posted.

Since ISPs, web hosts, and other platforms cannot possibly moderate every piece of content posted, even with today’s AI and other technologies, these intermediaries need protection, as well.

To encourage cooperation, the DMCA offers safe harbor to intermediaries that take reasonable steps in intellectual property protection. These include educating users, cooperating with copyright holders and agents, and removal of infringing content.

These “safe harbors,” giving immunity from liability, cover:

• hosting and storage of infringing content and activities.
• caching of infringing materials.
• linking and providing tools that direct people to infringing activities.
• providing networks and infrastructure.

To better understand the details and thresholds of DMCA safe harbor as they apply to your needs, consult with an IP attorney.

How do DMCA Notices Work?

DMCA Notices, also called “DMCA Requests” or “DMCA Complaints,” are notices that copyright holders send to web hosts, search engines, and internet service providers informing them of copyright violations on their platforms. If the recipients refuse to remove the content in question within a reasonable timeframe, they can be held liable for copyright infringement.
These “safe harbors,” giving immunity from liability, cover:

DMCA takedown notices provide a straightforward process for both copyright holders and intermediaries. The alternative, civil cases dragged through the courts for every instance of infringement, would be impossible in the digital age.

DMCA Protection: What Types of Content are Covered?

The DMCA protects all types of content normally covered by copyright law. This includes:

• images
• video
• music
• books and written content
• art, illustrations, etc.
• computer software
• logos and trademarks

Website copyright protection can be confusing, since web pages may combine content from different owners. But essentially, like magazines and books, all writings, art, photos, etc., are protected.

Copyright holders and website managers who are unsure of the online protection for their particular content should consult an intellectual property attorney. Remember also, that the DMCA applies only to the United States. Navigating copyright protections and laws internationally can be complex and challenging.

Who Can File a DMCA Notice?

DMCA requests can be filed by all copyright holders and their representatives.

Note that many people mistakenly believe copyright is something that must be registered or applied for. But as soon as a work is “fixed in a tangible form,” whether written down on paper or painted on a canvas, it is protected by copyright. Registering a copyright for a work simply provides more protection.

Still, determining ownership can be murky. For instance, if a photographer works for an ad agency to create a promotional banner for a client, determining who owns the copyright of the photographer’s images is not straightforward.

The Language of DMCA Takedown Notices

DMCA Takedown Notices have no standard templates. Typically they include the essential information:

• identification and details of the copyright infringement.
• places/pages where the infringement can be found.
• location of the original content.
• name and contact information of the copyright holder.
• statement that the use in question was not approved.
• takedown request.

Still, DMCA takedown requests require certain language, so checking with a professional is advisable.

When Should a DMCA Notice Be Filed?

As with all intellectual property protection, immediate action is crucial. Whenever content owners discover infringement, it is in their best interests to send a DMCA notice immediately and follow up as necessary.

DMCA Compliance

While the goals and provisions of the DMCA are straightforward, anyone managing websites should become acquainted with DMCA compliance. Many large organizations add legal pages to their websites that state their compliance policies, such as how to file a copyright infringement complaint and how the organization responds to these complaints.

To learn best practices, website managers in companies, universities, government agencies, and other organizations should consult with professionals on DMCA compliance.

DMCA Subpoenas

DMCA subpoenas are powerful tools that help copyright owners identify anonymous infringers. The DMCA empowers copyright owners to subpoena internet service providers to obtain information that can help identify these offenders.

The DMCA subpoena process involves filing a formal request with a district court that lists (1) the subpoena sought, (2) a copy of the DMCA Takedown Notice, and (3) a sworn declaration that the information obtained will not be misused. If the DMCA subpoena request contains these three items, the district court clerk is required to comply.

Takeaways

The DMCA set down a new legal framework for dealing with copyright and infringement in the new digital millennium. Content creators, copyright holders, and website managers should all have a basic understanding of the law and how its provisions affect their work.

What Is a Non-Compete Agreement? 

You may have come across the phrase “non-compete agreement” or similar terminology like “restrictive covenant”, “covenant not to compete”, or “post-employment restriction”. It’s possible that you’re being asked to sign a non-compete agreement at your new employer, or are leaving an employer with whom you signed a prior restrictive covenant. No matter the situation, it’s important to understand what exactly non-compete agreements are, how they are enforced, and what can happen if they are breached.

A non-compete agreement, or non-compete, is a legal contract between an employer and prospective employee. At its core, a non-compete seeks to prevent an employee from competing with their former employer. This is done by restricting the employee’s activity in that employer’s industry. Non-compete agreements should not be confused with non-disclosure agreements (NDAs), which prevent an employee from revealing confidential information but do not otherwise restrict employment opportunities.

Restrictive covenants exist to protect an employer’s intellectual property and trade secrets. By limiting the activities of a former employee, employers hope to keep that employee from using any information gained on the job to either aid a competing business, or start a competing business themselves. In this way, the employer ensures that their market share is not immediately threatened by a former employee with knowledge of an employer’s trade secrets or other proprietary information.

There are no set standards for non-competes, so restrictions and enforcement are a matter of state jurisdiction. Some states see post-employment restrictions as a legitimate way of protecting the interests of businesses. Other states believe that non-competes are overly restrictive in what should be a free market system. In states such as North Dakota and Oklahoma, non-competes are not recognized at all, and in California an employer can be sued if they attempt to enforce one. Most recently the Federal Trade Commission, under the Biden administration, has proposed a ban on non-compete clauses nationwide, claiming it limits the opportunities of workers and stifles competition.

For the moment, non-compete clauses continue to exist, so it’s in an employee’s best interests to know what kind of restrictions are in the average non-compete agreement. 

What Does a Non-Compete Agreement Consist Of? 

As mentioned, non-compete agreements have no universal standard. The type of activities restricted and the scope of those restrictions is dependent on the business, industry, and the state the employee is in. However, most valid restrictive covenants will include the types of activities being restricted, the duration period for the restricted activities, and the geographic scope in which the activity is restricted. The specifics of post-employment restriction are important, as they are what a court uses to determine if the non-compete is unreasonable or not, if it is challenged by an employee.

When it comes to the specific employment activities being restricted, non-competes primarily prevent an employee from being hired by a company in a similar field. Restrictions can also keep an employee from starting their own business, or developing a competing product. They can also prevent an employee from recruiting other employees to their new company, which is known as a “non-solicitation agreement”.

For the duration of restriction, most non-competes set a period of six months to two years, with a year being the average length. Some employers go as high as three years, but anything beyond that would be considered unreasonable in most courts, outside of special circumstances. 

Geographic scope is typically limited to the area in which the employer directly does business, such as their headquarters or office. It’s not unusual for the geographic scope of a non-compete agreement to extend to the city the employer is in. Post-employment restrictions can also encompass an entire state, and in extreme cases, the nation. However, these are less likely to be accepted by courts, particularly for smaller companies without national business interests.

A non-compete can also identify the specific business or industries that the employer views as competition. It does not need to be an exhaustive list, but enough for an employee to get an idea of the work they’re restricted from.

Breaching a Non-Compete Agreement

As a non-compete agreement is considered a legally binding contract, there can be severe consequences if one is broken. 

Typically, a breach of a non-compete agreement will result in an injunction against the employee in question, in order to prevent any further competitive activity. If successful, the employee will be forced to comply with the terms of the non-compete, which could include leaving their current employer. In a more extreme scenario, the employer will file a lawsuit against the employee, who could face civil penalties as a result. The employer may also choose to seek damages, in the form of profits lost as a result of the breach.

An employee can attempt to challenge a non-compete agreement after breaching it. With the help of a lawyer, the employee might be able to prove that the non-compete is unreasonable in its restrictions or is not protecting any legitimate business interests as defined by state law. Depending on the state, the non-compete will either be modified or voided entirely. Ludwin Law Group has experience in handling cases involving breaches of restrictive covenants. 

Conclusion 

Non-compete agreements can be tricky to navigate. They can differ significantly from employer to employer, and are largely dependent on how the employer’s state recognizes and enforces post-employment restrictions. In states where they are recognized, such as Florida, it is pertinent for employees to be aware of their state’s non-compete statute and what it means for their own employment.

With the Federal Trade Commission’s (FTC) recent proposal to ban non-compete agreements entirely, there may come a time when employees do not need to be concerned about dealing with post-employment restrictions. Until that time, it is important to always seek professional legal counsel, either before signing a restrictive covenant, or when exiting a company with which one has been signed. Otherwise, employees can find themselves with limited work opportunities, and severe legal risks if they attempt to overstep the terms of their non-compete agreement. At Ludwin Law Group we offer legal counsel for non-competes, to help you adequately assess a post-employment restriction you are about to undergo or are already under. 

The saying “sticks and stones may break my bones but words will never harm me” becomes irrelevant when it comes to defamation. Words can and will hurt us despite the message our literary forefathers were attempting to drive home. In fact, words are so powerful that a single act of defamation can derail someone’s entire career. 

Defamation, by nature, is harming a person’s reputation through acts of slander and libel. Slander is verbal defamation, which involves making false statements about someone orally. Libel is written defamation, where false statements about an individual are published. So, while sticks and stones may break our bones, and actions may even speak louder than words, let us not undercut the severe destruction that words may cause.

Now, whether these words are spoken aloud (slander), written down (libel), or stated online (internet defamation), someone is bound to face the wrath of defamation law. Anybody, at any given time, can exercise their right to freedom of speech. It just so happens that some exercise these rights while hiding behind their computer screens. Technology has found its place in contemporary society and its medium has been prevalently utilized to interact with others and express oneself.  Combined with the linguistic arsenal of social media, podcasts, comment sections, and blog posts, people have the world at their fingertips and can practically say anything they want about anybody. This podium, front and center amidst the World Wide Web, will inevitably lead to internet defamation.

Internet Defamation

Internet defamation, also known as cyber slander, occurs when someone makes a false statement online that negatively impacts another person’s reputation. An example of this, specifically related to cyber slander, would be if a young Zoomer hopped in front of his tripod to film his weekly podcast and spoke false information about the upcoming election. Say, he lied about either Biden’s or Trump’s campaign which, in turn, caused a downward trend in votes among either of their supporters, despite the actual facts of their campaigns. This could certainly constitute cyber slander and, even more so, internet defamation. 

How to Deal with Internet Defamation 

If you ever found yourself on the victim side of cyber slander or cyber libel, addressing the situation is likely the hardest part. It is important, as frustrating as this may sound, to remain calm so that you have the ability to think clearly and logically. Then, it is time to collect any evidence that supports your stance as a victim of defamation. Since we are dealing with a case of online defamation, be sure to take screenshots, save videos, provide website or social media links, and collect any other concrete information about the fraudulent offender. 

Once identified, it is worth it to try to settle the issue between both parties cordially so that it never sets foot in the courtroom. You can also report the defamatory statement to the appropriate platforms (i.e., YouTube, Instagram, Facebook, etc.). If the problem persists, filing a lawsuit may be the only course of action. At this point, it is important to rely on your attorney and the tangible evidence you have both gathered. Just remember that the perpetrator must be proven along with the defamatory statement they have made. To prove defamatory nature, you must be able to identify the statement as both false and harmful to your reputation, prove the emotional distress it has caused you, and tangibly show any financial loss directly correlated with the cyber slander or libel. If justice prevails, you will expectantly collect rewards in economic, emotional harm, and loss of reputation damages.

Defamation Law and Free Speech

Now that we have established the main element of an internet defamation lawsuit as false statements made online that harm someone’s good standing, we can narrow down prospective online statements as both false and harmful ones. Yet, the complications of this legislation fall within the very premise of the American constitution that upholds the value of speaking one’s mind freely and openly. So, why do the words we say have anything to do with the law? As American psychologist Albert Mehrabian would tell you, it is not what you say but how you say it. Or, perhaps, a little bit of both in this case. 

For those thinking, This is America! What happened to our freedom of speech? look no further. If defamation law is regulated on the basis of words and speech, then can anyone really say anything they want? This brings into question a person’s true intentions, meta-communication, and accuracy of information when making a statement online. 

In Florida, for instance, defamation law still recognizes and protects a person’s right to speak, including opinions, subjective public comments, and criticisms. These are referred to as pure opinions and are neutral in relation to their informational accuracy, whether they are harmful to someone’s feelings or not. For example, one can make the false argument that Facebook was founded in 2010, but likely no one will bat an eye because the claim is merely incorrect but not harmful to anyone nor defamatory. Conversely, a group of golf fanatics may openly discuss the situation of Tiger Woods’s infidelity on their podcast, which would be harmful to Woods’s new-found reputation. Even so, this scenario is historically accurate and not defamatory either. 

However, if a statement of opinion contains a clear inkling of falsehood and has the potential to damage a reputation, a case of defamation may be in order, but it must meet legislative criteria for exactly what defamation is. This begs the question of whether or not we can speak controversially and get away with it, which falls back to our constitutional rights to free speech. 

The Concept of Freedom of Speech 

The concept of freedom of speech is an attractive one, much as the “American dream” preaches idealism. Though, while it is one thing to relish in the appeal of free speech and embrace it as a distinct part of American culture, it is entirely another to forget about the consequences of the words we speak or write, especially on the internet. To aid us in distinguishing between an instance of internet defamation and free speech, multiple principles provide some necessary guidance.

Firstly, free speech online is government-oriented. As long as one does not involve the government in some way with the videos they record or the comments they post, anything goes. Also, the limits to freedom of speech are few and far between, even when it comes to instances of hate speech or insensitive and immoral comments or opinions. As frustrating as this may seem, people, groups, or communities that function on the basis of immorality such as racism, sexism, or homophobia are still entitled to their opinions. The First Amendment protects this, but it also protects others’ rights to disagree. 

Speaking of protection, we arrive at the principle of government regulation. That is why the mention of free speech as government-oriented is greatly important to understand. A government’s responsibility is to keep order, allow for opportunity and prosperity, and provide justice. This is feasible when the law fosters a human condition that is fair and opportune, and in return, is followed. This standard is not met, however, if violence is incited, reputation is harmed, or someone’s livelihood or welfare is jeopardized. If free speech instigates any of these, the speech is rightfully punishable by law. 

Lastly, there is a distinction between what is morally acceptable and constitutionally acceptable. We must separate our perceptions of morality from the reality of the law. This is where ongoing societal fixation points such as cancel culture and condemning controversial topics become front and center. These circumstances are still constitutionally protected as long as violent, destructive, and illegal activity do not take place.  

Internet Defamation v. Free Speech Online

With these guiding principles, an act of internet defamation is not protected by First Amendment rights because it is unlawful in that it violates a person’s intellectual property, makes false remarks despite fact, and causes harm, suffering, and loss, which is socially and lawfully tortious. It is important to note that the online speech must meet all of these criteria as that is what constitutes any statements as defamatory, slanderous, and/or libelous. However, the constitution still protects any speech over the internet, fact or fiction, as long as it is not defamatory or cause for unlawful action. Unprotected speech is defamatory speech.