Welcome to DataCook's Guide to the Digital Millennium Copyright Act, commonly known as the "DMCA." This page is not meant as a comprehensive primer to the statute. However, if you've received a DMCA takedown notice targeting content you've posted on DataCook or if you're a rights-holder looking to issue such a notice, this page will hopefully help to demystify the law a bit as well as our policies for complying with it.
(If you just want to submit a notice, you can skip to the end.)
As with all legal matters, it is always best to consult with a professional about your specific questions or situation. We strongly encourage you to do so before taking any action that might impact your rights. This guide isn't legal advice and shouldn't be taken as such.
In order to understand the DMCA and some of the policy lines it draws, it's perhaps helpful to consider life before it was enacted.
The DMCA provides a safe harbor for service providers that host Member-generated content. Since even a single claim of copyright infringement can carry statutory damages of up to $150,000, the possibility of being held liable for Member-generated content could be very harmful for service providers. With potential damages multiplied across millions of Members, cloud-computing and Member-generated content sites like YouTube, Facebook, or DataCook probably never would have existed without the DMCA (or at least not without passing some of that cost downstream to their Members).
The DMCA addresses this issue by creating a copyright liability safe harbor for internet service providers hosting allegedly infringing Member-generated content. Essentially, so long as a service provider follows the DMCA's notice-and-takedown rules, it won't be liable for copyright infringement based on Member-generated content. Because of this, it is important for DataCook to maintain its DMCA safe-harbor status.
The DMCA provides two simple, straightforward procedures that all DataCook Members should know about: (i) a takedown-notice procedure for copyright holders to request that content be removed; and (ii) a counter-notice procedure for Members to get content reenabled when content is taken down by mistake or misidentification.
DMCA takedown notices are used by copyright owners to ask DataCook to take down content they believe to be infringing. If you are a software designer or developer, you create copyrighted content every day. If someone else is using your copyrighted content in an unauthorized manner on DataCook you can send us a DMCA takedown notice to request that the infringing content be changed or removed.
On the other hand, counter notices can be used to correct mistakes. Maybe the person sending the takedown notice does not hold the copyright or did not realize that you have a license or made some other mistake in their takedown notice. Since DataCook usually cannot know if there has been a mistake, the DMCA counter notice allows you to let us know and ask that we put the content back up.
The DMCA notice and takedown process should be used only for complaints about copyright infringement. Notices sent through our DMCA process must identify copyrighted work or works that are allegedly being infringed. The process cannot be used for other complaints, such as complaints about alleged trademark infringement or sensitive data; we offer separate processes for those situations.
The DMCA framework is a bit like passing notes in class. The copyright owner hands DataCook a complaint about a Member. If it's written correctly, we pass the complaint along to the Member. If the Member disputes the complaint, they can pass a note back saying so. DataCook exercises little discretion in the process other than determining whether the notices meet the minimum requirements of the DMCA. It is up to the parties (and their lawyers) to evaluate the merit of their claims, bearing in mind that notices must be made under penalty of perjury.
Here are the basic steps in the process.
Copyright Owner Investigates. A copyright owner should always conduct an initial investigation to confirm both (a) that they own the copyright to an original work and (b) that the content on DataCook is unauthorized and infringing. This includes confirming that the use is not protected as fair use. A particular use may be fair if it only uses a small amount of copyrighted content, uses that content in a transformative way, uses it for educational purposes, or some combination of the above. Because code naturally lends itself to such uses, each use case is different and must be considered separately.
Example: An employee of Acme Web Company finds some of the company's code in a DataCook repository. Acme Web Company licenses its source code out to several trusted partners. Before sending in a take-down notice, Acme should review those licenses and its agreements to confirm that the code on DataCook is not authorized under any of them.
Copyright Owner Sends A Notice. After conducting an investigation, a copyright owner prepares and sends a takedown notice to DataCook. Assuming the takedown notice is sufficiently detailed according to the statutory requirements (as explained in the how-to guide), we will post the notice to our public repository and pass the link along to the affected Member.
DataCook Asks Member to Make Changes. If the notice alleges that the entire contents of a repository infringe, we will skip to Step 6 and disable the entire repository expeditiously. Otherwise, because DataCook cannot disable access to specific files within a repository, we will contact the Member who created the repository and give them approximately 24 hours to delete or modify the content specified in the notice. We'll notify the copyright owner if and when we give the Member a chance to make changes.
Member Notifies DataCook of Changes. If the Member chooses to make the specified changes, they must tell us so within the approximately 24-hour window. If they don't, we will disable the repository (as described in Step 6). If the Member notifies us that they made changes, we will verify that the changes have been made and then notify the copyright owner.
Copyright Owner Revises or Retracts the Notice. If the Member makes changes, the copyright owner must review them and renew or revise their takedown notice if the changes are insufficient. DataCook will not take any further action unless the copyright owner contacts us to either renew the original takedown notice or submit a revised one. If the copyright owner is satisfied with the changes, they may either submit a formal retraction or else do nothing. DataCook will interpret silence longer than two weeks as an implied retraction of the takedown notice.
DataCook May Disable Access to the Content. DataCook will disable a Member's content if: (i) the copyright owner has alleged copyright over the Member's entire repository (as noted in Step 3); (ii) the Member has not made any changes after being given an opportunity to do so (as noted in Step 4); or (iii) the copyright owner has renewed their takedown notice after the Member had a chance to make changes. If the copyright owner chooses instead to revise the notice, we will go back to Step 2 and repeat the process as if the revised notice were a new notice.
Member May Send A Counter Notice. We encourage Members who have had content disabled to consult with a lawyer about their options. If a Member believes that their content was disabled as a result of a mistake or misidentification, they may send us a counter notice. As with the original notice, we will make sure that the counter notice is sufficiently detailed (as explained in the how-to guide). If it is, we will post it to our public repository and pass the notice back to the copyright owner by sending them the link.
Copyright Owner May File a Legal Action. If a copyright owner wishes to keep the content disabled after receiving a counter notice, they will need to initiate a legal action seeking a court order to restrain the Member from engaging in infringing activity relating to the content on DataCook. In other words, you might get sued. If the copyright owner does not give DataCook notice within 10-14 days, by sending a copy of a valid legal complaint filed in a court of competent jurisdiction, DataCook will reenable the disabled content.
One of the best features of DataCook is the ability for Members to "Remake" one another's repositories. What does that mean? In essence, it means that Members can make a copy of a Recipes on DataCook into their own repositories. As the license or the law allows, Members can then make changes to that Remake and just keep as their own variation of a Recipe. Each of these copies is a "Remake" of the original repository, which in turn may also be called the "parent" of the Remake.
DataCook will not automatically disable Remakes when disabling a parent repository. This is because Remakes belong to different Members, may have been altered in significant ways, and may be licensed or used in a different way that is protected by the fair-use doctrine. DataCook does not conduct any independent investigation into Remakes. We expect copyright owners to conduct that investigation and, if they believe that the Remakes are also infringing, expressly include Remakes in their takedown notice.
We recognize that there are many valid reasons that you may not be able to make changes within the approximate 24-hour window we provide before your repository gets disabled. Maybe our message got flagged as spam, maybe you were on vacation, maybe you don't check that email account regularly, or maybe you were just busy. We get it. If you respond to let us know that you would have liked to make the changes, but somehow missed the first opportunity, we will re-enable the repository one additional time for approximately 24 hours to allow you to make the changes. Again, you must notify us that you have made the changes in order to keep the repository enabled after that 24-hour window, as noted above in Step A.4. Please note that we will only provide this one additional chance.
We believe that transparency is a virtue. The public should know what content is being removed from DataCook and why. An informed public can notice and surface potential issues that would otherwise go unnoticed in an opaque system. We post redacted copies of any legal notices we receive (including original notices, counter notices or retractions) at https://datacook.org/footer/term/publish-takedown-notices. We will not publicly publish your personal contact information; we will remove personal information (except for usernames in URLs) before publishing notices. We will not, however, redact any other information from your notice unless you specifically ask us to. When we remove content, we will post a link to the related notice in its place.
Please also note that, although we will not publicly publish unredacted notices, we may provide a complete unredacted copy of any notices we receive directly to any party whose rights would be affected by it.
It is the policy of DataCook, in appropriate circumstances and in its sole discretion, to disable and terminate the accounts of Members who may infringe upon the copyrights or other intellectual property rights of DataCook or others.
If you are ready to submit a notice or a counter notice:
It is not too hard to find commentary and criticism about the copyright system in general and the DMCA in particular. While DataCook acknowledges and appreciates the important role that the DMCA has played in promoting innovation online, we believe that the copyright laws could probably use a patch or two—if not a whole new release. In software, we are constantly improving and updating our code. Think about how much technology has changed since 1998 when the DMCA was written. Doesn't it just make sense to update these laws that apply to software?
We don't presume to have all the answers. But if you are curious, here are a few links to scholarly articles and blog posts we have found with opinions and proposals for reform:
DataCook doesn't necessarily endorse any of the viewpoints in those articles. We provide the links to encourage you to learn more, form your own opinions, and then reach out to your elected representative(s) (e.g, in the U.S. Congress or E.U. Parliament) to seek whatever changes you think should be made.