February 2010 Copyright Infringement of Websites and Safe harbours introduced by DMCA

So you are an attorney in the United States and have a client based in Russia that has two largely identical websites – one in the UK, one in the US, each hosted by country-specific subsidiaries of the same hosting company.The host removed the UK site because of a spurious copyright infringement claim by your client’s former partner. You are then engaged to protect your client’s US interests, including having the US site restored should the US site be taken down pursuant to the DMCA take-down notice.

In the US if a host takes down a site pursuant to a DMCA notice, they must later restore the site pursuant to a DMCA response from the alleged infringer. Following the procedures provides safe harbor for the ISP from liability for infringement. However your client wants to know whether there are analogous provisions in the UK.
What steps can be taken short of litigation to have a site that has been taken down restored?

The answer is that Article 12-15 of the Electronic Commerce Directive 2000 parallels to a large part, safe harbours, introduced by the DMCA. UK implementation took place in the Electronic Commerce (EC Directive) Regulations 2002. ISPs have immunity from liability for copyright infringement provided that they do not have actual knowledge of infringement and they act expeditiously to remove infringing websites when informed that such websites are engaging in illegal activity. Notice is given to the ISP under regulation 6(1)(c) of the Electronic Commerce Regulations 2002. ISPs are not immune however to injunctive relief.

An ISP is unlikely to bring down a website on the expositional evidence of one party. You would almost always require an injunction.

The author is not qualified to give legal advice on US law and does not purport to do so. He is a solicitor admitted in England and Wales and regulated
by the Solicitors Regulation Authority with reference number 511025.