Welcome to GitBook'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 GitBook 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.
What Is the DMCA?
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.
Before the DMCA, an Internet-based service provider like GitBook could be liable for copyright infringement in the United States just for hosting its users' pictures, music, videos or code. This was true even if it had no actual knowledge of any infringing content. This was a problem, since even a single claim of copyright infringement can carry statutory damages of up to $150,000. With potential damages that high multiplied across millions of users, cloud-computing and user-generated content sites like YouTube, Facebook or GitBook probably never would have existed (or at least not without passing some of that cost downstream to their users).
The DMCA attempted to fix this problem by creating a so-called copyright liability "safe harbor" for internet service providers hosting allegedly infringing user-generated content. (See U.S. Code, Title 17, Section 512.) 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 user-generated content. Because of this it is important for GitBook to maintain its DMCA safe-harbor status.
DMCA Notices In a Nutshell
The DMCA provides two simple, straightforward procedures that all GitBook users should know about: (i) a takedown-notice procedure for copyright holders to request that content be removed; and (ii) a counter-notice procedure for users to get content reenabled when content is taken down by mistake.
DMCA takedown notices are used by copyright owners to ask GitBook to take down infringing content. 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 GitBook 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 GitBook 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.
A. How Does This Actually Work?
The DMCA framework is a bit like passing notes in class. The copyright owner hands GitBook a complaint about a user. If it's written correctly, we pass the complaint along to the user. If the user disputes the complaint, they can pass a note back saying so. GitBook 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 GitBook is unauthorized and infringing.
Example: An employee of Acme Web Company finds some of the company's documentation in a GitBook space. Acme Web Company licenses its documentation out to several trusted partners. Before sending in a take-down notice, Acme should review those licenses and its agreements to confirm that the documentation on GitBook 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 GitBook. Assuming the takedown notice is sufficiently detailed according to the statutory requirements (as explained in the how-to guide), we will pass the notice along to the affected user.
GitBook Asks User to Make Changes. If the notice alleges that the entire contents of a space infringe, we will skip to Step 6 and disable the entire space expeditiously. Otherwise, because GitBook cannot disable access to specific pages within a space, we will contact the user who created the space 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 user a chance to make changes.
User Notifies GitBook of Changes. If the user 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 space (as described in Step 6). If the user 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 user makes changes, the copyright owner must review them and renew or revise their takedown notice if the changes are insufficient. GitBook 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. GitBook will interpret silence longer than two weeks as an implied retraction of the takedown notice.
GitBook May Disable Access to the Content. GitBook will disable a user's content if: (i) the copyright owner has alleged copyright over the user's entire space (as noted in Step 3); (ii) the user 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 user 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.
User May Send A Counter Notice. We encourage users who have had content disabled to consult with a lawyer about their options. If a user 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 pass it 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 user from engaging in infringing activity relating to the content on GitBook. In other words, you might get sued. If the copyright owner does not give GitBook notice within 10-14 days, by sending a copy of a valid legal complaint filed in a court of competent jurisdiction, GitBook will reenable the disabled content.
C. What If I Inadvertently Missed the Window to Make Changes?
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 space 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 space 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 space enabled after that 24-hour window, as noted above in Step A.4. Please note that we will only provide this one additional chance.
D. Repeated Infringement
It is the policy of GitBook, in appropriate circumstances and in its sole discretion, to disable and/or terminate the accounts of users who may infringe upon the copyrights or other intellectual property rights of GitBook and/or others.
E. Submitting Notices
If you are ready to submit a notice or a counter notice: