Digital Millennium Copyright Act Takedown Procedure: An Overview

J. Clifton Smith

By J. Clifton Smith

If you’ve ever poked around on the terms and conditions pages of YouTube, Facebook, Twitter or any other website that hosts user-generated content, you may have seen the Digital Millennium Copyright Act (DMCA) mentioned somewhere among the sea of fine print. You may also have seen a notice similar to the following after running a Google search:


DMCA is the federal statute that sets the ground rules for companies who host video, images, sounds, text or other files uploaded by the company’s customers. One of the most well-known and impactful portions of DMCA is the Online Copyright Infringement Liability Limitation Act (OCILLA), enacted as Title II of DMCA. By following a set of rules and procedures specified in the statute, web hosts, social media sites and file sharing services can protect themselves from liability under the Copyright Act for infringing materials uploaded by users.

If you run an online business, it is essential for you to understand the DMCA takedown process and what you need to do to comply with it. Even if your company doesn’t generate revenue online, you may need to become familiar with this process if you discover an unauthorized copy of your intellectual property somewhere on the web, or if your company’s website is targeted with a takedown notice.

Before looking at the takedown procedure itself, it is important to understand that although DMCA gives copyright holders a method to effect the removal of infringing content, the statute actually limits plaintiffs’ ability to file copyright infringement lawsuits. Continue reading »

Unemployment Insurance in Missouri: Should Employers Respond to Claim Notices?

Ruth Binger

By Ruth Binger

New regulations require Missouri employers to respond timely to information requests regarding unemployment insurance compensation. The federal Trade Adjustment Assistance Extension Act (“TAAEA” or the “Act”) of 2011 requires, among other things, that states increase employers’ duties regarding unemployment compensation claims. Specifically, the Act provides that states must require employers to respond timely and adequately to Claim Notices, information requests from state agencies relating to unemployment benefit compensation claims. It also requires states to charge the unemployment accounts of employers that repeatedly fail to respond to Claim Notices for unemployment benefits paid to ineligible former employees.

In Missouri, an employee that satisfies all the unemployment insurance benefit eligibility requirements may still be disqualified from receiving benefits for voluntarily quitting without good cause or for being discharged for work misconduct. Once a terminated employee files a claim for unemployment benefits, the Missouri Division of Employment Security (“DES”) mails the former employer a Claim Notice, which requires a response within 10 days. The Claim Notice permits the employer to protest an unemployment benefits claim because the former employee quit voluntarily or was discharged for misconduct. If the claim is not in dispute, the employer must still respond to acknowledge the claim.

Some employers routinely fail to respond to Claim Notices. They may systematically choose not to respond to Claim Notices to avoid becoming involved in a former employee’s benefits appeal. Continue reading »

IRS Grants Extension to Elect Portability Under Certain Circumstances

Misty A. Watson

By Misty A. Watson

The IRS has released Rev. Proc. 2014-18 to provide taxpayers the opportunity to obtain an extension of time to make a portability election under certain circumstances.

Portability allows a surviving spouse to receive the unused estate tax exemption of the predeceased spouse for gift and estate tax purposes. The estate tax exemption for 2014 is $5,340,000.

Under the new revenue procedure, an extension to file for this election will be granted under the following conditions:

(1) The taxpayer is the executor of the estate of a decedent who: Continue reading »

Mizzou Story Highlights Tension Between Doctor-Patient Privilege and Protecting the Patient

Laura Gerdes Long

By Laura Gerdes Long

A story concerning the death of a female athlete by suicide, her alleged rape, and the role played by the university she attended in the tragic facts has placed the issue of patient confidentiality squarely in the headlines.  The story highlights the care that must be taken to protect a patient’s ability to speak candidly and honestly to his or her medical provider without fear that such information will be divulged to anyone else without the patient’s permission.

The female student athlete had committed suicide in 2011, approximately 16 months after her alleged rape in 2010 by another student athlete at the school.  According to an email posted to Mizzou’s website on January 24, 2014, an ESPN producer of “Outside the Lines” wanted to know if University of Missouri officials planned to investigate or notify law enforcement about the alleged rape.  Just hours before publishing the story, the ESPN producer asked university officials: Continue reading »

Missouri Changes Its No-Oral-Credit Agreement Disclaimer Language Requirements for Lenders

David A. Zobel

By David A. Zobel

Missouri has once again amended its credit agreement statute of frauds to limit the ability of borrowers and guarantors to assert claims against lenders and the parties’ written credit agreement based upon oral promises or commitments.  Specifically, Senate Bill 100, effective late 2013, extends Missouri’s prohibitions to reach not only oral, but now also unexecuted agreements or commitments to loan money, extend credit, or to forebear from enforcing repayment of a debt if the parties’ credit agreement contains certain disclaimer language as provided in the statute.

Extending the prohibition specifically to unexecuted agreements between the parties became necessary after Mo. Rev. Stat. 432.047 was limited by the Missouri Court of Appeals in its Bailey v. Hawthorne Bank decision.  In that case the Court of Appeals broadly construed several different bank documents, including a bank loan summary which was never delivered to the borrower, to find a “credit agreement” as that term is used in the statute. Continue reading »

Estate Planning for Second Marriages

Misty A. Watson

By Misty A. Watson

Prior to saying “I do,” those getting married for a second time have many more estate plan considerations to take into account than a first-time marriage.

Children from the previous marriage and spouses often have different interests and expectations about inheritance. If a large difference in age or health status exists between the new spouses, further complications can arise.

Without some type of waiver of spousal rights, a surviving spouse may have a right to elect against the estate plan that is put in place. In Missouri, this means the surviving spouse may receive one-third (1/3) of the estate, even if the will only provides for the children. Continue reading »

Condo Association Embezzlement Case Demonstrates Need for System of Financial Checks and Balances

David A. Zobel

By David A. Zobel

A St. Louis bookkeeper recently pled guilty to wire fraud for embezzling more than $70,000 from his condominium association. His scheme spanned more than two years and involved more than 50 unauthorized wire transfers from the association’s financial accounts to the bookkeeper’s own personal bank accounts.  Unfortunately for condominium and homeowner associations, this type of activity is all too common and demonstrates the critical need for associations to prepare and implement systems of financial checks and balances.

What each association’s system should entail to sufficiently reduce the risk of improper financial activity (while also recognizing the need for effective and responsive management) will vary from association to association depending on several factors, including association size, level of involvement from the homeowners, and governing rules. However, many effective systems begin with distributing financial supervision and actions between several individuals. This practice includes: Continue reading »

All Married Couples in Missouri Filing Joint Federal Returns Must Also File Joint State Returns

Misty A. Watson

By Misty A. Watson

Married couples in Missouri who file joint federal tax returns, including those not recognized as married by the state but recognized as married in other states, must also now file jointly in the state of Missouri.

Governor Jay Nixon issued the executed order clarifying that, under Missouri law, couples filing joint federal income tax returns must also file joint state returns.

Click here to read more.

Posted by Attorney Misty A. Watson. Watson’s practice focus is estate-related: planning, administration, and probate. She creates trusts, wills, financial, and health care powers of attorney, guardianships, and conservatorships.

Court Sides with Green Day in Artist’s Copyright Infringement Lawsuit

J. Clifton Smith

By J. Clifton Smith

The famous pop-punk band Green Day recently prevailed with a fair use defense in a copyright infringement case decided by the Ninth Circuit Court of Appeals. In Seltzer v. Green Day, Inc., the band was sued by Dereck Seltzer, an illustrator whose drawing titled Scream Icon appeared in a video that Green Day played on stage during its live shows.

Scream Icon is a black-and-white illustration of an anonymous face frozen in what appears to be a tormented scream. Seltzer originally intended for the piece to be a counterculture symbol among skaters and other young people in Los Angeles in the early 2000s, and he commercialized the work by selling posters, stickers and other prints of the image. Green Day used Scream Icon in a video that played while the band performed “East Jesus Nowhere,” a song commenting on social issues connected with politics and religion. This video consists of time-lapse footage of a brick wall in an alley as graffiti artists paint various images and tags on the wall, including several defacements of an image of Jesus. Throughout the video, which lasts about four minutes, a photograph of a weathered and torn poster of Scream Icon is visible in the center of the screen, but with a red cross spray painted on top of the screaming face. The video’s designer, Robert Staub, chose to use Scream Icon because he thought it matched the song’s mood and themes, including, presumably, the band’s anger about certain political events.

When Seltzer got word of the band’s use of Scream Icon, he sued the band, its individual members, their label, the video’s producer, and several other defendants. Seltzer testified at his deposition that he thought the video “tainted the original message of the image and…made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with.” But while copyright holders have the right to reap the economic value of their works, they do not have absolute control over the expressive content of their works.  It is often said that all creative work is derivative. Artists build not only on the work of their predecessors, but also the work of their contemporaries, and copyright law incorporates this principle through the fair use doctrine. Continue reading »

SEC Finally Proposes Rules to Allow Crowdfunding

Joseph R. Soraghan

By Joseph R. Soraghan

Not quite ten months late, the Securities and Exchange Commission (SEC) on October 23, 2013 proposed rules to allow entrepreneurs and other small businesses to advertise investments in their companies on the Internet and in other general venues, and to allow persons other than wealthy investors to purchase those investments. Congress, in the JOBS Act signed by President Obama on April 5, 2013, had told the SEC to propose such rules by December 31, 2012. (In fairness, the SEC was faced with great pressures from numerous quarters, including the legislators themselves, concerning the content of the rules, which made that deadline impossible to meet.)

This type of investing, called “investment crowdfunding,” was illegal, and will remain illegal until the process of review, amendment and adoption of final rules is complete. The SEC has asked the public for comment on the proposed rules within 90 days. At least a few months of further processing after that 90 day period will be required before the rules are final. Continue reading »