A Fair DMCA Policy for Creators
There has been a lot of discussion recently about fair use on the internet, and much of it revolves around the copyright enforcement and DMCA policies companies use. Following the DMCA is critical for any company with user generated content. Patreon would be sued into oblivion if we ignored the DMCA, but we think there is a balance to be struck between rights holders and fair use. Our team at Patreon has been working on our DMCA policy for a while and we are proud to show you the results. We hope this can serve as an example of how DMCA policies can be better.
Everything at Patreon is built to be creator first, including our legal policies. Patreon still doesn’t receive many DMCA takedown notices, but we take each one very seriously because creators rely on Patreon as a source of income. Our DMCA policy aims to be one of the fairest and most transparent available. Of course, this doesn’t mean it’s perfect, and we are always interested in your feedback on how we can improve. In fact, a core component of our policy was implemented because of creator feedback.
To help you understand our policy, I (Hi by the way, I’m Colin, Patreon’s in-house counsel) am going to walk you through what happens when we receive a DMCA notice. To start, we make sure it complies with all of the legal requirements of a DMCA notice. This includes stating that they have a good faith belief that the content is not authorized by law. This is important because there can be penalties for rights holders that send malicious DMCA notices when they know it is fair use or otherwise not infringing. By sending the DMCA notice they may be taking on liability, so they are less likely to send it to unlawfully harass someone without a basis in copyright law.
We also reserve the right to evaluate the claim on its merits. We probably won’t reject a claim for this reason —we haven’t yet— but if we think that a claim has no merit or that it is clearly fair use, we may give up our safe harbor and reject the DMCA notice. This allows us to protect creators’ income from malicious claims that might otherwise financially ruin them.
If the DMCA notice passes our review then we contact the creator to inform them.
Quick tangent for context: we do a lot of user research here at Patreon to improve our product, and even our non-product services. When asked about DMCA notices, one thing that many creators mentioned is that they just wanted to be warned and have the option to act on it themselves instead of having an automated system remove the content.
As a result, we are giving creators 48 hours to handle a DMCA notice on their own before we step in to take action ourselves. This does increase our legal risk, as the “expeditious” removal speed required by the DMCA is not very clear, but we feel very strongly about warning our creators and giving them a chance to act.
Helping with the Counter-Notice
Sometimes a DMCA notice requires removal of specific content on a creator’s page. In that case we tell the creator that they have 48 hours to remove the content themselves before we will remove it for them. We also forward them the DMCA notice we received and specific instructions on how to send a counter-notice. Sending a counter-notice carries a lot of legal risk for creators, so we have partnered with attorneys who represent creators to offer a guaranteed flat rate of $350 for a counter-notice review to take some of the uncertainty out of the process. If you aren’t using an attorney, then counter-notice instructions can be confusing, so we’ve made every effort to simplify them. Here is a screenshot from the email we send to creators:
A Second Chance
Unfortunately, in other cases a DMCA notice requires removal of a creator’s entire page. When the notice is for derivative works, and not blatant piracy, we are always happy to have the creator come back to Patreon with a new page. Many creators take their first steps by using others’ content as a starting point. They sometimes create content that isn’t protected by fair use, but still requires huge amounts of hard work and talent. In those cases, we encourage them to come back to make a new page and use those skills to create original works.
To help facilitate this we also send them a CSV file of all of their patrons and encourage them to create a new Patreon page immediately so they can start migrating patrons in the 48 hours before we take their page down.
At the same time that we contact the creator, we also add the DMCA notice to Lumen, which some of you may know as Chilling Effects. It is a database of DMCA notices so that researchers can track the use and effect of DMCA notices on the internet.
After 48 hours, we then check to see if the content or page is still up. If it is, we remove it, and if we are removing a page we also notify all of the patrons of the sad news.
This is the end for most DMCA notices, but if any creator sends us a counter-notice we immediately inform the original DMCA notice sender and start the required 10 day timer before we can put the content back up. If the notice sender doesn’t respond within that time, we put the content or page back up.
Fair or Too Far?
You may be reading this and think that this is actually anti-creator because we are encouraging infringement, but we believe there is a middle ground. The DMCA provides a way to remove infringing content, while also putting in place some safeguards. Many companies have removed these safeguards, but we strongly believe they help strike the right balance between protecting rights holders and protecting other creators that should be protected by fair use.
We also have a repeat infringer policy to remove anyone who receives multiple DMCA complaints. This way our policies will protect legitimate creators, but will not shelter repeat infringers. Creators that send counter-notices are not removed by this policy though. We do not count DMCA notices that were responded to with a counter-notice as a strike against a creator in our repeat infringer policy.
We really hope creators see the value in having a policy that is fair and a company that takes some legal risks to protect their rights. We are excited to hear from you and welcome any feedback to make our policy even better.