How to legally send large files

Every year, more Internet users are switching to cloud-based file sharing services. As a result, many people do not understand why they cannot store or share copyrighted work online. This article explains what laws apply, how they work in practice, and how users can safely send large files online.

What laws affect file sharing?

The Digital Millennium Copyright Act (DMCA) is a U.S. copyright law that seeks to end copyright infringement on the Internet by penalizing online services that circumvent ownership of copyrighted works. Title II of the DMCA, Online Copyright Infringement Liability Limitation Act (OCILLA), protects online service providers from copyright liability. However, to receive protection file sharing services must follow special guidelines and block access to, or remove, copyright infringing material.

Wikipedia defines file sharing as “the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia (audio, images and video), documents, or electronic books.” It is important to know that copyright file sharing is not illegal per-se. For instance, it is legal if the copyright holder supports freeware, shareware, open source, or anti-copyright, and advocates the use of file sharing as a free promotional tool. Also, older works that have reached public domain status can also be freely shared.

Copyright gives the creator of original work exclusive legal rights to it, and also gives the copyright holder the right to be credited for the work, to determine who may adapt, perform, or financially benefit from the work. Generally speaking, if you create an original work, you are the copyright holder. So if you create a large home video of your family reunion, you are the copyright holder and can legally share or send large files online.

File sharing services allow users to send large files using a web site, typically by hosting files and sharing access links to those files.

Is my file sharing service DMCA compliant?

OCILLA states that if a file sharing service receives a notification claiming infringement from a copyright holder (e.g., a takedown notice), the service must act expeditiously to remove the alleged infringing material. Notices must be given in writing. File sharing services cannot financially benefit directly from copyright infringing activity. Ad-supported file sharing web sites or subscription-supported web sites cannot circumvent copyright ownership. Also, file sharing services cannot be aware of the presence of infringing material, and after receiving notice from copyright owners, must remove infringing material. By reading a website’s Terms of Service or Copyright Policy, you can easily determine if they follow the law. If a copyright policy is omitted, or there is no mechanism to implement a takedown notice, the web site is likely not following the law.

What about user uploaded content?

Section 512(c) of OCILLA requires that file sharing web sites comply with industry-standard technical measures and remove copyright infringing abusers. In practice this is best exemplified by YouTube, who allows electronic notification of copyrighted work and employs automatic identification and blocking of copyrighted music and videos uploaded to its web site. To avoid litigation, YouTube aggressively blocks content, even when only a short clip is used or when the sound is playing in the background. Users who repeatedly abuse the system are banned. Any legitimate file sharing service allows for copyright takedown notices.

What if the takedown notification is wrong?

OCILLA includes a provision for counter-notification that offers file sharing web sites protection to their users upon receiving notice from such users claiming that the work is, in actuality, not infringing. However, to avoid litigation file sharing services typically err on the side of caution and will avoid hosting contested material.