The Digital Millennium Copyright Act was enacted in the late 1990s to provide a copyright dispute resolution system for the web that would keep the courts from being flooded with copyright infringement lawsuits. At the core of the law is the DMCA takedown notice. In this blog post, we take a look at the required elements of notification.
DMCA Takedown Notice
Copyright infringement is the single most common legal issue online. With the right click of a mouse, anyone can copy and republish content without the permission of the person creating the content, to wit, the copyright owner. In the vast majority of cases, the act of infringement is innocent – someone reposting a meme to Twitter. In some cases, the act is malicious. Regardless of whether the infringement is innocent, malicious, or somewhere in between, the DMCA provides copyright owners with a method for addressing the problem – the takedown notice.
Under the DMCA, a copyright owner can issue takedown notices to “service providers” to force those parties to terminate their involvement in the infringement. These service providers can include the site the content appears on, the host for the site, search engines, and any other party linking to the content. In exchange for excluding the content, the providers are provided a DMCA safe harbor in which they cannot be sued.
Let’s assume “Phil” sees his 1,500-word blog post republished on a forum. His first step would be to issue a DMCA takedown notice to the DMCA agent of the forum letting them know of the infringement. If the forum does not take down the content, Phil would look up the hosting service for the site using a “Who Is” domain search, and serve a takedown notice on that company as well. Finally, Phil would serve notices on Google, Yahoo, and Bing. If all parties comply with the notice, the offending page would be removed by the host and delisted in the search engines.
If you’ve had an excessive number of coffees today, you may have noticed one party is missing from the notice protocol discussed above – the party who copied and reposted the content. You do not need to contact said party under the DMCA. If your DMCA notices are accepted by the parties mentioned above, the posting party will be given the right to respond to the takedown notice in a counter-notice. Most parties will not as copyright infringement is often clear.
Elements of Notification
A DMCA takedown notice is not an artistic endeavor, to wit, inflamed demands to remove content or die will not suffice. The notice is purely legal and requires the copyright owner to provide certain information and statements. The requirements are as follows:
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Courts have proved to be lenient when applying this list of requirements to real-world scenarios. So long as a copyright owner substantially complies, a court will uphold the notice as valid.
DMCA Takedown Template
We’ve seen a few DMCA takedown templates offered for sale online. Don’t pay a penny. There is no need. You can create your own notice so long as you tick off every requirement in the code above. For example, a takedown notice email might read:
Subject: DMCA Takedown Notice
Please consider this formal service of a DMCA takedown notice to your company as a service provider. As required under 17 U.S.C. 512(c)(3), I hereby submit:
My Original Blog Post: http://www.dmcaagentservice.com/do-i-need-a-dmca-safe-harbor-agent/
Infringing Page: http://www.istealyourcontent.com/do-i-need-a-dmca-safe-harbor-agent/
My Contact Information:
5040 Seachase Way
San Diego, California 92130
rick@dmcaagentserviceDOTcom [Damn you spam bots!]
I have a good faith belief that use of the material in the manner complained of is not authorized by myself, the copyright owner. I declare under penalty of perjury that I am the copyright owner of the content in question and have the exclusive right to act on this infringement.
Rick Chapo – signed
Nothing else is required.
You now know the purpose of the DMCA takedown notice and the elements of notification, but who do you actually serve the notice on? The DMCA agent for the service provider in question. You can usually find the agent through a “DMCA” link in the footer or the terms and conditions of the site in question. Alternatively, the United States Copyright Office maintains a database of DMCA agents. For example, here is the agent designation for Twitter.
Larger service providers may require you to fill out a form specific to their company. Google is a perfect example. The company has so many platforms and receives so many [millions] of complaints a month that it requires copyright owners to enter complaints into a database through an interview process found here just so the company can keep track of everything. You can follow this process without worrying about the traditional elements of notification.
The DMCA takedown notice is a critical tool in the arsenal of any copyright owner seeking to protect their content online. In most cases, providing all the elements of notification in service to the DMCA agent for the site in question will result in the removal of the offending content – your ultimate goal.