A flurry of posts appeared recently on the Net as a consequence of Ralph Lauren issuing a DMCA take-down notice to the ISP of entertainment site Boing Boing. Without attempting the summarise the broader debate on notice and take-down procedures (which, to put it mildly, is the subject of some contention), this incident is useful reminder that notice and take-down processes impose obligations on notice issuers as well as notice recipients.
The take-down notice (available as a PDF) was directed at a post by a Boing Boing blogger that incorporated an image in which Ralph Lauren claimed copyright. The blogger’s purpose in reproducing the image was to mock the electronic manipulation of the original photo, which had produced the consequence that the head of the model in the image appeared to be out of proportion to the rest of the model’s body.
The general tenor of Boing Boing’s response was that Ralph Lauren had issued the notice not as a means to protect its intellectual property rights, but rather as a device to remove the criticism (and potentially embarassing image) from the ‘Net.
In Australia, Division 2AA of Part V of the Copyright Act limits, subject to certain conditions, the liability of carriage service providers (which includes ISPs) for copyright infringement. Getting to the prescribed Notice of Claimed Infringement (Copyright Regulations sch 10) takes some tracking through the Copyright Act and Copyright Regulations, but the quick version is that this notice is issued by a copyright owner to a carriage service provider, and is part of the overall process that allows a carriage service provider to access the safe harbour (and consequent protection from liability) set out in Division 2AA of the Act.
If the content of the Boing Boing post had been hosted in Australia, the prescribed form of the notice would have contained the following statement (emphasis added):
I believe, in good faith, that the storage of the specified copyright material on your system or network is not authorised by me or a licensee, or the Copyright Act 1968, and is therefore an infringement of the copyright in that material.
Copyright Regulations reg 20X prohibits a person from knowingly making a material misrepresentation in a notice (which includes taking reasonable steps to ensure the accuracy of the content of the notice). Importantly, a breach of this regulation entitles any person who suffers loss or damage because of the material misrepresentation to claim that loss or damage from the issuer of the notice, which could potentially include the original poster of the material.
The combined effect of these provisions is that a lack of authorisation by the copyright owner is not, by itself, sufficient justification for the owner to issue an infringement notice to a carriage service provider. The owner should also consider whether the relevant use is authorised by the Copyright Act (see Division 3 of Part III which, for example, includes fair dealing for the purpose of parody or satire), since a failure to do so could potentially result in a claim for damages.
Of course, the Boing Boing example is not illustrative of the operation of Australian law (although the DMCA provisions are similar to those in the Copyright Act). However, given that the dialogue on notice and take-down processes is topical and ongoing, it is a timely reminder that all such processes represent the product of a balancing process involving many separate and competing interests.