DMCA Take-down Procedure

As a matter of policy, the OSM Foundation voluntarily complies with the provisions of the United States Digital Millennium Copyright Act (DMCA) of 1998 and has a registered agent.

The OSM Foundation and community respect the intellectual property rights of others. We respond to specific claims of copyright infringement by intellectual property owners or their approved agents provided that sufficient information is given. We have documented procedure for making such claims here: http://www.osmfoundation.org/wiki/License/Takedown_procedure

Our main point of first contact is our on-line filing page.

Purpose of this document

This document defines what happens after a claim is made. It serves as ...

a public document so that potential complainants and alleged infringers can understand clearly what we will do and why;
a manual and check-list for our OSMF volunteers;
an ISO 9000-style quality control.

What we understand to be our responsibilities

The act itself can be found at http://www.copyright.gov/legislation/pl105-304.pdf and general orientation information can be found at http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

Chilling Effects also provides cited clarificatory text here:

http://www.chillingeffects.org/dmca512/

http://www.chillingeffects.org/dmca512/faq.cgi

Important points; text in italics are quotes from the Chilling Effects FAQ above:

If we know that material is violating copyright before a takedown procedure, we need to remove it. Chilling Effects says, “the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. “
Our contributor terms are probably sufficient for the following what it would be good practise to publicly document a policy for repeat infringers: “To qualify for exemption under the safe harbor provisions, the service provider must give notice to its users [OSM contributors] of its policies regarding copyright infringement and the consequences of repeated infringing activity. [512(i)(1)(A)] The notice can be a part of the contract signed by the user when signing up for the service or a page on the service provider's web site explaining the terms of use of their systems. While there are no specific rules about how this notice must be made, it must be "reasonably implemented" so that subscribers and account holders are informed of the terms. [512(i)(1)(A)]”
Once we receive a takedown notice, we must remove the material regardless of what the OSM contributor says. There is no deadline for doing that but it must be “expeditious”.
We also need to notify the OSM contributor. This may optionally be done before the material is removed, but must be done so afterwards. “In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] “
If we receive a counter-notice, we need to promptly inform the complainant. If, after 14 days, “If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]”

Our Procedure Timeline

Work in progress! Requires input and review from Data Working Group. Also waiting some clarification by legal counsel.

In this text,

“OSMF” is the OpenStreetMap Foundation, its working groups, and its formal DMCA agent. Note that all our staff are voluntary and our schedules must reflect that we have other lives to live.
“Complainant” is the person or organisation filing a take-down notice.
“OSM Contributor” is the person controlling the account under which allegedly infringing material is introduced into the OSM database.

The text also assumes that the complaint is related to geodata in our database but the process is also applicable to general material published on our websites.

1) OSMF receives take-down notice

We will check the validity of the notice. This procedure will be limited to core DMCA issues, i.e. copyright infringement, and where valid information, such as contact details, is provided.

The take-down notice cannot be a vague claim that we have infringing material in our database. The provisions require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)].

The complaint also has to come from the actual copyright holder or their agent, e.g. lawyer. If it does not, we are not bound by the DMCA procedure but will investigate what appear to be substantive claims further as we now have the knowledge that we have, at least potentially, infringing material on our system ([512(c)(1)(A)], [512(d)(1)(A)])

2a) OSMF removes or disables the alleged infringing material

We will remove or disable the specific instances of material alleged. We will make best effort to do this within 30 days or sooner.

Time Frame: This must be done in an “expeditious” manner. There is no statutory formal deadline but within 30 days or sooner is our target as a balance between being responsible and the availability and time of volunteers to do the work. Rationale: A UK court, (so not the same jurisdiction as DMCA), felt that five weeks was too long for Google to react in a libel case http://www.guardian.co.uk/media/2013/feb/14/google-libel-blogger-posts .

Reference:

17 U.S.C. Sec. 512. Limitations on liability relating to material online (b)(2)(E) if the person described in paragraph (1)(A) [the OSM Contributor] makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement ...

Note that in a recent case, ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. So, to be cautious, we may search for other material obviously likely to be infringing and remove that also.

2b) OSMF posts takedown notice

2c) OSMF notifies OSM Contributor of alleged infringement

We will send email to the OSM Contributor’s registered email address via a 0-hour block before or shortly after the material is removed.

Time Frame: This can optionally be done before the material is removed or disabled, but, once removed, must be done.

Template: http://www.osmfoundation.org/wiki/License/Takedown_procedure/Takedown_Notice_To_Alleged_Infringer TODO: Finish.

Blocking the OSM Contributor’s account will not be done, unless the Contributor re-uploads the infringing data. The Contributor may wish to file a counter-notice;

2d) OSMF notifies complainant of alleged infringement action

We will notify the complainant of the action taken and that the OSM Contributor has been notified. This is not a requirement but will be done as a courtesy and for transparency and the avoidance of doubt.

Time Frame: This does not appear to be a DMCA requirement.

Template: http://www.osmfoundation.org/wiki/License/Takedown_procedure/Takedown_Response_To_Complainant TODO: Finish.

2e) Repeat infringement?

We will check if the OSM Contributor is a repeat infringer and, at our careful discretion, may disable the contributor account permanently as per Contributor Terms. This will not be done until they have had time to file a counter-notice.

3) OSM Contributor may file a counter notice

A formal DMCA counter-notice may be filed by the OSM Contributor or by an interested third party. A proper counter-notice must contain the following information:

The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
Identification of the material and its location before removal [512(g)(3)(B)]
A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

Time Frame: This is up to the OSM Contributor and does not have to happen immediately.

4) OSMF informs complainant of the counter-notice

We will promptly inform the complainant that a counter-notice has been received, preferably via an email address provided in the original notice.

Time Frame: “promptly”, implicitly well within 10 business days. Reference:

17 U.S.C. Sec. 512. Limitations on liability relating to material online (g)(3)(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

5) Restore the material

If the complainant does not notify us of the filing of a court restraint order within 14 business days, the OSMF must restore the material.

Time Frame: THIS IS VERY TIGHT!!! Between 10 and 14 business days after receipt of the counter notice unless the complainant notifies OSMF that a court restraint order has been filed. Reference:

17 U.S.C. Sec. 512. Limitations on liability relating to material online (g)(3)(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to