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Legal effect of DMCA takedown notices in foreign jurisdictions

The enforcement of intellectual property rights remains one of the highest priorities in the sphere of information technologies. A variety of computer programs, scientific developments, films, books, games, etc. available on the Internet often involves abuse of the rights of creators or owners of intellectual property.  In many countries copyright infringement can lead to substantial legal  penalties. Using the intellectual property protected material without permission, knowledge or consent of its owner can result not only in the blocking of sites that illegally release the material, but also in liability to be prosecuted. The US Digital Millennium Copyright Act (DMCA) is a vivid example of a fight against copyright infringement.

Many website owners, and even ordinary Internet users, have received unusual notices from Google: “We have been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that some of your webpages allegedly infringe upon the copyrights of others. Here are the affected URL(s):... The DMCA is a United States copyright law that provides guidelines for online service provider liability in case of copyright infringement. We’re in the process of removing the allegedly unlawful materials from Google Search results”.

In this situation, one may legitimately ask why the abovementioned American law shall be applied to Ukrainian websites? In Ukraine, any issues associated with intellectual property are regulated by the Law “On Copyright and Related Rights” and not by the US Digital Millennium Copyright Act. However, local information resources are often subject to sanctions under of the DMCA.

It is important to study out whether Google’s claims under the DMCA are justified. Indeed, the U.S. laws may not apply to other sovereign states unless otherwise provided by international treaties. However, in fact, the U.S. Digital Millennium Copyright Act may apply to other countries. This is due to the fact that Google is registered in the U.S. and shall obey the U.S. law. Failure to comply with the DMCA may result in significant penalties for US-based companies. In order to protect itself, Google removes search results that link to allegedly infringing material. Thus, it may be argued that the US Digital Millennium Copyright Act applies to other foreign jurisdictions.

One should also keep in mind that almost all well-known domain zones (e.g., .com, .org, .net, .info) belong to the companies registered in the U.S. and hence shall obey this Act. Accordingly, if a foreign Internet resource is registered in such a domain zone, it actually falls within the scope of the DMCA, and is obliged to comply with its rules.

It should be also noted that search engines that have the same domain name, but registered in different domain zones, such as Yandex.com and Yandex.ru, differ in their attitude towards the U.S. Digital Millennium Copyright Act: the first one obeys the DMCA, and the second one operates within the Russian regulatory framework.

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