So you’ve discovered that a website is using something you’ve created without permission, and you want them to stop. The quickest route to make this happen is to submit a ‘DMCA takedown notice’, though the process itself can seem daunting if you’re not familiar with the language involved.
In short: The Digital Millennium Copyright Act, or ‘DMCA’ is a piece of American law that provides a mechanism for copyright holders to have allegedly infringing material taken down speedily from the Internet without having to resort to legal action – whilst also protecting the online service providers from liability for the actions of their users.
Should you wish to follow up on the unauthorised use of your works online, this guide will give an idea of what’s involved, and how to submit a formally valid notice. Having seen thousands of these takedown notices as part of my job, I know a fair bit about the quirks that are involved.
Things to Consider
Before submitting a DMCA takedown notice, there are some general things to bear in mind:
- The DMCA is American law. As a result, online service providers located outside of the US are not bound by its contents. There are similar provisions enacted in different jurisdictions, but generally the DMCA is seen as the industry standard. It is often the case that hosts will comply with valid takedown notices even if they technically are not required to by their local laws, but don’t expect bank on this.
- Takedown notices do not prevent the spread of the material. Just because you manage to get something removed from one host, doesn’t mean that it won’t pop up again somewhere else – much like the ‘whac-a-mole’ game you see in American films. Sometimes giving attention to one instance of infringement can lead to a multiplication of the problem, rather than a solution. As a result, you need to question whether taking action will be worthwhile, or whether sleeping lions are best left undisturbed. This is relevant.
- Not every use of copyrighted material is actionable. People are entitled to use copyrighted material without permission in certain circumstances, such as for the purpose of research, criticism, education, or news reporting; known as the ‘fair use’ doctrine. You have an obligation to consider this possibility before submitting a takedown notice for the use of content in which you hold a copyright interest.
The Takedown Notice
The DMCA takedown notice itself isn’t very complicated, but it does require a number of specific elements in order to be considered formally valid. It’s amazing how often people screw this up.
- A signature from the copyright holder, or somebody who they have authorised to act on their behalf. This can either be a physical, or electronic signature.
- An identification of the material that is being used without permission. In other words, what photograph, text, or other content is it?
- An identification of where the infringing material is located. Where exactly is the content being used without permission? Include a direct link to the page where it exists, and be careful not to include dynamic URLs, as this can delay the process.
- Details to allow the service provider to contact the complainant, such as address, telephone number, or e-mail address.
- A ‘good faith belief’ that the material’s use is not authorised by the copyright owner, agent, or the law.
- A statement that the notice is ‘accurate, and under penalty of perjury, that the complaining party is authorised to act on behalf of’ the copyright holder.
That’s all. There are various examples available on the web that add in a whole lot of extraneous information about the obligations of service providers and so forth, but legally this is not required. Whilst some smaller hosts may be intimidated this approach, the extra verbiage more often than not can seem as if the complainant is clutching at straws in a desperate bid to have material taken offline.
Some things that are worth noting:
- You can have somebody submit the DMCA takedown notice on your behalf, if you would rather.
- The signature must be of a person. This sounds obvious but in other words, you can’t sign your company name – it must be either yours or the third party acting as your agent for the submission.
- Though some service providers specifically ask for it, the DMCA does not require you to provide all of your contact details. As a general rule, I would only supply the minimum necessary, and avoid giving up personal phone numbers and addresses This is particularly true as a copy of the notice can often then forwarded on to the user who published the material in the first place (depending on the policies of the host in question). An e-mail address should suffice.
- If you do not want to supply your own details, the DMCA allows for you to submit a takedown notification through a third party agent, acting on your behalf.
A sample DMCA takedown notice is as follows:
Subject: DMCA Takedown Notification
To whom it may concern,
This e-mail is notification under USC 17 §512, the Digital Millennium Copyright Act (DMCA), of instances of copyright infringement operating on site(s) under your control.
The copyrighted work at issue is as follows:
** INSERT DESCRIPTION OF COPYRIGHTED WORK **
The unauthorized, and infringing copy is available the following URL(s):
** INSERT URLs WHERE THE COPYRIGHTED WORK CAN BE FOUND **
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
I demand that you expeditiously remove or disable access to the material in question.
I may be contacted on:
** NAME **
** ADDRESS **
** TELEPHONE NUMBER **
** E-Mail Address **
The following should be considered my electronic signature for the purposes of §512(c)(i):
** TYPE OUT FULL LEGAL NAME **
- Don’t submit these DMCAs by post, or in PDF format. Unless you want to be really, really annoying (which you might!), this will only serve to slow down the actual process of getting your material removed, which should really be the priority.
The Process – What Happens Now?
Once you have submitted a valid DMCA takedown notice, the process is as follows:
- The online service provider must act ‘expeditiously’ to ‘remove or disable access to’ the material that you have identified as infringing upon your copyrights.
- The user who published the material has the option to submit a counter notice, asserting their right to legally use the material. At this point you will be notified, and if you do not give notification of beginning legal proceedings, the content in question will be restored between 10 and 14 days after the submission of the counter notice.
So there are a number of possibilities for what could happen:
- Nothing. The service provider ignores your takedown notice, which can happen for a variety of reasons (such as their location outside of the US). At this point you are left with little option but to undertake legal action to have the material removed.
- The material is removed by the service provider, and stays offline. The best possible outcome.
- The material is removed by the service provider, but a counter notice is received shortly thereafter, leading to it being restored within the 10-14 day window unless you pursue legal action.
NB: This is not to be taken as legal advice.