King of the Potato People

As I work in a ISP, I (unfortunately) have to deal with the abuse mailbox. And unfortuantely, these means responding to DMCA notices from US companies. How do you deal with a copyright infringement happening on your network, but when the holder is in the US and trying to apply US law?

DISCLAIMER: I am not a solicitor.

The US DMCA act allows a copyright holder to issue what is commonly known as a DMCA takedown notice. In some cases, such as MediaSentry, they’ll even try to insist that you completely disconnect the user.

Unfortunately (or fortunately) the US DMCA act cannot be enforced in the UK. So the actual notice and demand is completely invalid. Does that mean you can ignore it? No. The US company could still pursue damages in a US court and most likely win. Once they have a judgement against you, they could then bring it to the UK – and as an ISP, you don’t want that to happen.

I handle it by contacting the user directly, informing them that we have a alleged copyright infringement against them and that the need to cease and desist using any Bittorrent, Limewire, eDonkey or whatever their flavour of Peer-2-Peer software is. After that, the response I send to the copyright holder is as follows:

Please note that we are a UK company and under UK law the DMCA act does not have a equivelent provision. However, in the intrests of protecting your represented copyright holder we have acted upon this notice and the user identified by IP address xx.xx.xx.xx has been reprimanded.

Under section 35 of the UK Data Protection Act of 1998, we cannot provide any additional information unless presented with a certified UK court order.

This fulfills two things: It informs the US company that you can’t apply US law to a UK company. Secondly, it shows that you’re still willing to comply and help out to the best of your ability. Section 35 of the UK Data Protection Act is real, and states that you cannot give information about your customers to a third party with a court order (or subpeona, for those in the US).

Example DMCA Takedown Notice

abuse@xxxxxxx.uk

Sunday, June 01, 2008
[company]
[address]

RE: Unauthorized Distribution of the following media:
XXXXXXXX

Dear Abuse Department:

We are writing this letter on behalf of XXXXXX. No one is authorized to perform, exhibit, reproduce, transmit, or otherwise distribute the above-mentioned work without the express written permission of the copyright owner, permission which has not been granted to XX.XX.XX.XX.

We have received information that an individual has utilized the above-referenced IP address at the noted date and time to offer downloads of the above-mentioned work through a “peer-to-peer” service. The included documentation specifies the location on your network where the infringement occurred, as well as any other available identifying information. The distribution of unauthorized copies of copyrighted media constitutes copyright infringement under the Copyright Act, Title 17 United States Code Section 106(3). This conduct may also violate the laws of other countries, international law, and/or treaty obligations.

Since you own this IP address, we request that you immediately do the following:

1) Disable access to the individual who has engaged in the conduct described above; and
2) Terminate any and all accounts that this individual has through you.

On behalf of XXXXXX, the owner of the exclusive rights to the copyrighted material at issue in this notice, we hereby state, pursuant to the Digital Millennium Copyright Act, Title 17 United States Code Section 512, that we have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its respective agents, or the law. Also pursuant to the Digital Millennium Copyright Act, we hereby state that we believe the information in this notification is accurate, and, under penalty of perjury, that we are authorized to act on behalf of the owner of the exclusive rights being infringed as set forth in this notification.

Please contact us at the above listed address or by replying to this email should you have any questions. We appreciate your assistance and thank you for your cooperation in this matter. In your future correspondence with us, please refer to Case ID XXXXXXXXX. Your prompt response is requested.

Respectfully,

XXXXXXXX
SafeNet Enfocement Coordinator