The DMCA is a federal law in the United States addressing copyright topics that exist in the digital and online world. Several commentators have come up with interpretations that suggest individuals can interact with the DMCA while maintaining anonymity. Let’s take a look at whether these creative interpretations are correct.
DMCA Takedown Notice
You own the copyright to a piece of content. You believe a third party is using the content on a website without permission, to wit, the party is committing copyright infringement. You wish to file a DMCA takedown notice with the host of the site to force the removal of the content from the offending website.
Can you file the complaint anonymously? Yes…and no.
The DMCA allows a copyright holder to use a third party to file a DMCA takedown notice on their behalf. For example, Elon Musk doesn’t file DMCA takedown notices on behalf of Tesla. He has a legal department that takes care of the matter with an individual attorney submitting the takedown notice and swearing under penalty of perjury that he or she is authorized by the copyright owner to submit the claim.
However, many commentators stop with the analysis at this point and unintentionally mislead readers when they do so.
Here’s the problem. The party you’ve gone after with your takedown notice can contest it. They can file a counter-notification. Once they do, the ball is back in your court as the disputed content will stay up on the site. Your only move is to file a lawsuit against the person, and your identity will be revealed in that lawsuit through the discovery process. You will likely need to respond to written questions and have your deposition taken by the attorney for the other party.
Complying With DMCA
What if you are someone with an app or site and are trying to comply with the DMCA? Does the DMCA provide you with anonymity? Again, the answer is yes and no.
A business wishing to comply with the DMCA must provide certain information to the public. This includes:
- The DMCA agent information – name, address, phone number, and email address.
- The name of your business.
- The address for your business.
- The properties being covered by the agent.
You can act as the DMCA agent, but most people use a service such as ours. Why? Look at the information the agent must publish for the public. Do you want your name, phone number, address, and email address floating around online? Identity theft could be a significant problem. If nothing else, you are going to get a tsunami of spam and sales calls. [“For the hundredth time Bob, I don’t want to market on Google!] By using our service, you avoid such fate.
Ah, but what about the requirement you must list your business address? This requirement is problematic for people working from home. The Copyright Office DMCA rules require the business to post the “physical street address (not a post office box).” Fortunately, one can petition the Copyright Office for the right to use a PO Box. The attorney reviewing the petitions has liberally granted such requests for people working from home.
So, then you will have anonymity? Yes…unless a lawsuit is filed. If the copyright holder and alleged infringer start suing each other, you may be dragged into the lawsuit until your attorney can extract you by asserting the DMCA. A slight chance exists your identity could be discovered during this period. Admittedly, the chances are small, but it exists.
Amateur Anonymity Never Works
Let me be blunt. Unless you are a grade 12 super ninja, most efforts at true anonymity online are useless. Oh, the sales copy looks good for various services, promising you’ll be a ghost online, but lawyers and police authorities have the power to force companies to cough up your information. One of the easiest ways to do this is time-tested – follow the money. How do you make money off your online activities? You will often leave a trail that third parties can discover through subpoenas and court orders. Let’s look at one case where a young man was exposed when he no doubt thought he was covered.
Youtube sued Mr. Christopher Brady in 2019, alleging that the young man had been running a scam where he shook down influencers online by threatening to file fake DMCA takedown notices against them with YouTube unless they paid him various amounts of money. YouTube closes accounts after three successful DMCA complaints, so Brady was allegedly threatening the livelihood of each influencer. By demanding a few hundred bucks from each, he seems to have thought he could make easy money with little risk. Of course, he thought he was doing all of this anonymously.
Once YouTube realized what was happening, it began investigating the matter. The investigation eventually resulted in the company identifying Mr. Brady, and he quickly fessed up and settled with the company for abusing the DMCA. While it isn’t clear how they located the individual in question, it is clear that THEY FOUND HIM.
When it comes to anonymity, please don’t rely on it unless you spent your formative years in an abbey of hackers mastering the art.
So, does the DMCA provide you with anonymity? Yes, at first glance, but there is little doubt an aggressive attorney will be able to discover your identity using readily available legal tools. This outcome shouldn’t shock you. Congress designed the DMCA to create an informal process for resolving copyright issues online. At no time was anonymity ever a consideration.