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I'm planning on selling an app where users will be able to upload content, and other users will be able to see it. The content will not be available on a website. The content will be stored on my web service (which will be hosted on a web hosting company's server).

Is this in the same category as websites? That is, if someone sends a takedown request claiming that their copyrighted material is illegally available on the app, do I need to take it down as per the DMCA rules, and am I protected against false requests, do I need a designated agent, etc.?

(If I am responsible for takedown requests, I'd be grateful if you have some link to a tutorial on what, exactly, do I need to do before selling the app.)

  • Short answer is that the DMCA applies in cases where U.S. law is invoked, but a tutorial on what needs to be done to comply is probably too broad for a single question. – ohwilleke Oct 15 '18 at 18:17
  • @ohwilleke in cases where U.S. law is invoked - that's why I tagged it with 'united-states'. My question is about app vs website. (Or did you mean that an app is like a website?) As for a tutorial ... is probably too broad... - That's why I just asked for a link to one, and not as my question. Just as a favor in case the answer is yes. But while we're at it, I think that one canonical answer about what needs to be done to comply with DMCA (when publishing, and when receiving a takedown request) would be appropriate for the site, despite not following the usual rules to the letter. – ispiro Oct 15 '18 at 18:27
  • Your statements "not be available on the internet" and "hosted on a web hosting company's server" are contradictory. Just because the content in question is not accessible via a web page and only thru your app does not mean that it is not available on the internet. – brhans Oct 15 '18 at 18:54
  • @brhans You are correct. I edited it. I hope it's clearer now. – ispiro Oct 15 '18 at 18:57
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If your app is published under US law, then the DMCA would apply, just as if it was a web site. The DMCA doesn't say anything about what particular technology the distributor is using.

TO be protected by by the DMCA's "safe harbor" provision, you will need to include a notice in your app that you accept takedowns, and provide an address or method by which they can be sent, and an agent who will receive them. (You can be your own agent if you choose.)

When and if you recieve a take down notice, you must check if it is valid in form. According to this Wikipedia article, a takedown notice must include:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(See the actual text of the relevant section of the law.)

If you receive (through your designated agent) a valid takedown notice, you must promptly remove the content and notify the poster (or you can instruct to poster to remove it, but you must do so yourself if the poster does not). If the poster then files a valid counter notice (see the linked sources above) with your agent, you must notify the sender of the original notice, and if the sender does not notify you of a copyright suit filed within 10-14 days, you must restore the content.

Provided that these rules are complied with, the host gets a 'safe harbor" and cannot be sued for copyright infringement, nor for the act of taking down the content. I believe that the agent must be registered with the US copyright office.

The courts have not ruled on just how quickly an ISP or other host must react to the takedown notice. It must be "expeditious".

Moreover, Under the DMCA (i) 1) (a) The host must have, post, and enforce a policy denying access to repeat infringers, or lose safe harbor protection. The text of the provision is:

(i) Conditions for Eligibility.

-(1)Accommodation of technology.

—The limitations on liability established by this section shall apply to a service provider only if the service provider—

--(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers;

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In addition to David Siegel's excellent answer about DMCA, if someone takes you to court claiming your app is intended to help people commit copyright infringement (for example if it lets me upload my complete music library and makes it available to any other user of your app), then you might be in trouble beyond just the DMCA.

  • Quite true. The case of A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001) long before the DMCA, held as much. Moreover, Under the DMCA (i) 1) (a) The host must have, post, and enforce a policy denying access to repeat infringers, or lose safe harbor protection – David Siegel Oct 16 '18 at 19:57

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