Do we have a clear procedure to protect fair use if we receive a takedown letter?

If your company hosts user-generated material, you may find yourself on the receiving end of a letter demanding that you remove material or disable a user account because of alleged copyright infringement. To protect your users and your reputation, develop a procedure to review the targeted content carefully and do not remove content that constitutes fair use. The document, "Fair Use Principles for User Generated Video Content," provides advice on avoiding missteps by developing a procedure that properly balances intellectual property and fair use rights.

• Take fair use into proper account. Don't take down content that constitutes fair use or that is noncommercial, creative, and transformative in nature. In questionable cases, look for ways to support your users' rights without relinquishing your safe harbor protections.118
• Minimize impact on protected activities. Don't overreact and infringe on protected speech by removing other content posted by the same user, canceling someone’s account, or removing user comments posted about a particular content item.
• Incorporate "three strikes" protections for fair use into any automated filters. Do not use a filtering mechanism to automatically remove, prevent the uploading of, or block access to content unless that automated system is able to verify that the content has previously been removed pursuant to an undisputed Digital Millennium Copyright Act (DMCA) takedown notice or that all of the following "three strikes" against it apply:
  • The video track matches the video track of a copyrighted work submitted by a content owner
  • The audio track matches the audio track of that same copyrighted work
  • Nearly the entirety of the challenged content is composed of or is included in a single copyrighted work
  If there is an automated match, give the user an opportunity to dispute the conclusion of an automated filter, and provide human review if requested.
• Notify users when a takedown letter is received. Let users know that content has been taken down by posting information at the location where the content formerly appeared and by directly contacting the content creator or uploader. Include a copy of the takedown letter, and inform the user about her right to issue a DMCA counter-notice and your procedure for acting on such notices. Assist the user in contacting the content owner directly in order to request reconsideration of the takedown notice.