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Sending or Responding to a DMCA Takedown Notice

You’re chewing through your morning news feed when you read something very familiar. “Wait, I wrote that,” but it’s not your blog post.  You’ve been ripped off.  Clean up the coffee you just sputtered. Theft on the internet is rampant, of course, but under the Digital Millennium Copyright Act of 1998 (DMCA) you may have some legal remedy.  The law was originally designed to protect internet service providers, but as a practical matter, it gives good, easy and cheap legal recourse to individuals who claim copyright infringement.

So, was your incisive analysis, deathless prose, or visionary image copyright protected?   It does not necessarily require registration with the Copyright Office, but make sure before going any further that the material is protected.

The DMCA Takedown Notice Process

It’s a three-step process that involves three parties, the complainant, who is the individual claiming copyright infringement, the internet service provider, and the subscriber, or person accused of infringing.

  • Step one – as soon as the complainant sends the webhost a proper takedown notice, the ISP must take the offending material down and notify the subscriber.
  • Step two – the subscriber may then object by filing a counter notice with the ISP.
  • Step three – the material will then go back online within ten days unless the complainant notifies the ISP that it has filed a lawsuit.

Of course, lawsuits are expensive and ten days is a near eternity in the blogosphere, so the process often ends at step one.

What Must Go into a Takedown Notice?

A takedown notice, which might take the form of a letter or an email to the contact person at the ISP, must include 6 things:

  • It has to be in writing and it has to be signed.
  • It must identify that you own the copyright to works being infringed upon. Be sure to list each specific URL that contains your work separately. Attach screenshots or text to assist the ISP in locating your material. Note that you have attached them in the letter.
  • You must actually say that the website’s use of your content is infringing your copyright.
  • Include your contact information. An email address may be enough.
  • Your notice must state that you have a good faith belief that “the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
  • Finally, it must include a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Then the material should come down, but it’s worth policing.

But Wait, This is All a Horrible Mistake!

Suppose the shoe is on the other foot.  What if your ISP has notified you that it has taken down your work, but it really is your original work or you had permission to use it?  You can respond with a counter notice.  What goes into a counter notice?

  • Identification and the original location of the material that was removed
  • A statement made, under penalty of perjury, that the material was removed due to mistake or misidentification by the complainant
  • Your name, address and phone number
  • Consent to federal court jurisdiction local to the address and to accept service of process from the complainant
  • Your physical or electronic signature.

After ten days, the material should go back up, unless the complainant is willing to go the next step further and file a lawsuit.

Couldn’t the Takedown Process be Abused?

It’s theoretically possible for someone to make a hobby of filing a takedown notices every time you post something, but look again at the requirement that statements in both the original notice and the counter notice be make under penalty of perjury.  That comes with some pretty hefty penalties.

Keep in mind, though, that the DMCA notice and takedown system is limited to the U.S. and only applies to service providers located in this country.  The European Union and Australia have a takedown process, as well, but other countries may not, so some piracy may be harder to combat.

Nasir Pasha, Esq.

Post by:

Managing attorney and co-host of podcast Legally Sound | Smart Business

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