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DMCA Safe Harbor: Why Artists Can’t Sue Instagram

DMCA Safe Harbor
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Today’s digital world is fraught with social media practices that can present critical problems for artists and copyright holders, and DMCA safe harbor provisions only make the problem more complex. Since the advent of websites like YouTube, Instagram, and Facebook, an artists’ work is more visible than ever. But its also far more prone to being used in ways that the artist didn’t bargain for, and often times, the artist doesn’t realize that he gave his rights away the instant he uploaded the image for his own social media purposes. And while there are certain steps an artist can take to protect their creative products from illegal sharing on the internet, including taking legal action, understanding DMCA safe harbor provisions means you’ll have more bargaining power if you find yourself in this situation.

Say you’re a video artist and you’ve just uploaded your latest creation to YouTube, and one of your fans posted the video on his Facebook page. That video has been viewed on his page thousands of times, and you’ve lost revenue from the amount of clicks you’re normally paid through an agreement with YouTube. Understandably upset, you ask Facebook to take down the offending users post, and they comply. But taking down the post simply isn’t enough – you want to be compensated for lost wages.

Or maybe you’re a painter who uploaded an image of one of your latest works to your Instagram account. One of your followers liked the artwork so much that he uploaded the image to a print-on-demand website like Etsy, Café Press, and Society 6. Suddenly your artwork was appearing on mugs, t-shirts, and pillows, and you had absolutely no idea until a friend alerted you that someone in his office had a coffee cup with your painting on it. You contacted the company to let them know that they weren’t authorized to be using your image in such a manner, and that the original poster infringed on your copyright. They agreed to no longer offer the image for printing services, but you wondered how much money you could have made if you had just put your own images on a t-shirt.

The artists in both of these instances had little opportunities for re-dress thanks to the Digital Millennium Copyright Act, a law that was enacted in 1998 to shield internet service providers from copyright infringement liabilities. It may sound completely absurd, but lawmakers figured the best way to ensure a free flow of information on the internet was to protect website hosts from incurring any debilitating costs from litigation. While in most countries the DMCA safe harbor is somewhat limited, in the U.S. it’s a pretty big canopy under which ISPs hide from copyright lawsuits.

DMCA Safe Harbor: How Does it Work?

The DMCA safe harbor was designed to protect passive internet companies from incurring any liability if copyright infringement was found to have occurred on their website. But what exactly does “passive” mean? In the past, this has been defined as an ISP who allows user to freely upload and share content, without reviewing the content for its legality or otherwise ethical value, or charging any kind of premium for the benefit.

Thus, websites like Facebook, Twitter, Instagram, YouTube and more often allow infringing material to be posted to their websites, leaving the burden of policing users who illegally share images on the copyright holders.

The DMCA safe harbor may seem wide-reaching, but the law does require internet providers to take certain measures should it come to their attention that copyright infringement did in fact occur. This includes taking the offending material down, and instituting methods of detecting infringing material from the moment its uploaded. But generally speaking, internet providers have a lot of leeway under the DMCA.

So how would you, as an artist whose copyright rights have been infringed upon, defend yourself against an ISP that’s hosting your copyrighted content? First, you would need to find the offending material – not always an easy task. Then can you file a take down notice with the company, and they are required to comply within a reasonable time frame. But the definition of “reasonable” can vary from company to company, since those parameters haven’t been defined by a court of law.

Once you’ve filed a take down notice, the company must comply and remove the allegedly infringing content, as well as notify the original poster that their content has been removed. At that point, the infringer can defend himself and file a counter notice, insisting the content be re-posted without having to prove any legal justification whatsoever. At the point, the internet provider must comply, and only when a formal legal judgment or settlement has been reached by the two parties can the content be removed once and for all.

At this point, the artist has entered murky territory. Copyright is a no fault law, meaning that even if you innocently infringed on someone’s copyright, you can still be held accountable. In this case, that means you definitely have a claim against your infringer.

But the cost of litigation can often be extravagant, and requires weighing the benefits against the pitfalls. What if the offending poster is insoluble? Hard to find? Wealthy and ready to defend your claim vigorously? Between finding an attorney, negotiating where to litigate, and filing court fees and costs, it’s likely that a lawsuit will be far more trouble than it’s worth.

Why DMCA Safe Harbor Negatively Burdens Artists

The fact that an artist has to take so many steps only to potentially end up exactly where they started is a major reason why the DMCA safe harbor simply doesn’t look out for artists. Essentially, copyrighted material can be disseminated against your will, while major corporations simply throw up their hands and say, “Sorry, there’s nothing we can do.”

To begin with, don’t share or post content that hasn’t been registered with the Copyright Office. It’ll be much easier to make a demand from the offending poster if you have the proper documentation backing you up. Although a copyright is automatic at the time of creation, registration allows the copyright holder to receive $750- $30,000 per infringement, and the infringer is responsible for the copyright holders’ legal fees. With registration for copyrights costing just $35, it’s worth making the investment in order to protect your work.

Another option is to watermark your photos so that they can’t be stolen. Digital watermarks, such as those provided by Digimarc, apply an invisible layer on top of your images that holds various types of metadata. This layer cannot be removed from the image, and can be read by software regardless of where the image resides; whether on the web, in a magazine or on a mug.  On the Internet, that watermark can be used to track the image, alerting users to infringement. A takedown notice can then be sent for any discovered infringement.

Whether you’re helped or hurt by DMCA’s safe harbor, it’s clear that such wide protections for internet providers are bound to create plenty of confusion as social media sharing becomes more and more popular. In fact, you may even wonder whether copyright laws need to be overhauled in order to put more burdens on big companies. Or perhaps you’re glad the system is in place, because if you accidently infringe on someone’s content, you’d like the opportunity to defend yourself before it gets to court.

Whatever you think about DMCA safe harbor, let us know in the comments below.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

4 Comments

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  • It is difficult to believe that an article so full of false information could get published. One simple example: you do not need to register with the Copyright Office to file a DMCA takedown request with a web site. You need only send a letter that complies with the requirements of 17 USC 512. The registration requirement is for the Internet service provider, not the copyright owner. It must register a DMCA agent in order to take advantage of the safe harbor.

    And the DMCA has been terrific for artists. Without it, the only way that an artist could stop an infringement would be to bring legal action against the infringer. That is a slow and expensive process. Thanks to the DMCA, if someone infringes on the artist’s copyright by posting something to Instagram, a simple letter to Instagram can get it removed very quickly. And the artist can still sue the infringer who posted the material to Instagram if she wants. Instagram itself is not in a position to know if the material being posted to the site is infringing. It cannot be expected to police the content of its site anymore than a bookstore owner could be expected to suppress any possible libel that might be included in a book in the store.

    The best pieces of advice in the whole article is at the end. Watermarking a work will not keep it from being stolen, as the article suggests, but it may make it harder. And registration with the Copyright Office is imperative if one is concerned about limiting access to one’s work.

    • Peter, you’re certainly right about the copyright registration and I’ve since updated the article. Your comment is appreciated. Though I must say that I disagree that DMCA has been “terrific” for artists – while it does provide a clear avenue for action when your copyrighted material is infringed upon, its not exactly getting anything done about rampant re-posting of copyrighted content across the internet. Not to mention the fact that eventually legal action becomes the only course of action if you want to have copyrighted content removed, since in many cases it’s a he said-she said situation. And yes, maybe Instagram isn’t in a position to know what’s infringing and what’s not, but shouldn’t the social media giant backed by big revenue take a greater responsibility in this arena instead of leaving the burden to artists who may or may not have the resources to search for their copyrighted material all over the web? Just some food for thought.

      • You asked “shouldn’t the social media giant backed by big revenue take a greater responsibility in this arena…?” The answer would be yes – if the social media giant was playing the role of a traditional publisher. We expect publishers to assess material that it publishes and take responsibility for copyright infringement. But we don’t demand a newstand to assume liability for the content that may be sold by the newstand. If you ask social media sites to try to police content, then you run into monstrosities such as Yahoo’s Content ID system, notorious for taking down material that is non-infringing.

        It is not Google’s and Twitter’s and Instagram’s responsibility to police what copyright infringers may post to their sites. It is not the social media companies that are doing the infringing. American copyright law has always worked on the premise that it is the copyright owner who is responsible for enforcing her rights. The DMCA takedown process is a much lower-cost way of asserting copyright ownership than having to file a suit, and so works to the benefit of artists.

      • Living in Germany the USCO just wasn’t on my radar and the first six years infringements weren’t an issue I had to deal with much. In February 2015 my view on copyright was radically altered. I don’t have much of one. My copyright is reduced to an endless loop of take down notices while all the while amazon and their felony amazon partner make money with my work. It is one thing to safeguard the information flow and keep the freedom of expression alive on the internet; it is quiet another if this same safeguard is guarding the nefarious money flow bypassing the original artist and cutting into his income by stealing his customers away with fancy shop apps that makes it simple for customers to find and buy counterfeits by actually grabbing the image from the PoD and looking for the image on amazon. And like etsy amazon is not living up to their DMCA obligations. Documented by a lot of artists including in my back and forth mail correspondence. My count on reported storefront infringing on my IP is more than 1,000, take downs more than 10,000. Many storefronts reported by multiple artists and quiet a few more than once even more than once with one and the same artwork. Several hundred artists all with the same story of infringement and felony counterfeit storefronts formed a group on facebook called “who stole my image?”

        Yes, the DMCA in its current form is not protecting the artist. Or else I would have a reasonable chance to be compensated, my legal fees were the problem of the felons and that of the company assisting the felons and not mine, USCO registration or not. Copyright in the US sucks.

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