How to Send an Effective DMCA Takedown Notice

How to Send an Effective DMCA Takedown Notice

Table Of Contents

    If someone is using your creative work – whether it be a blog post, song, podcast, or article – without your authorization, they are infringing on your copyright. To get them to stop and remove the infringing work and/or material, you may consider sending a DMCA takedown notice.

    In situations involving the copyright infringement of your creative work, you can send an effective DMCA takedown notice by:

    1. Taking screenshots of the infringing material/website to preserve the violation;
    2. Identifying where to send the DMCA notice/determining the copyright agent;
    3. Working with an experienced internet attorney to draft the DMCA notice in compliance with Section 512(c) of the Digital Millennium Copyright Act (DMCA);
    4. Sending the DMCA takedown notice to the perpetrator or ISP hosting the infringing material.

    At Minc Law, we have deep experience in drafting and consulting on DMCA takedown notices. Through our work, we have succeeded in removing over 50,000-plus pieces of infringing and defamatory content from the internet. We have worked directly with countless website administrators, online content managers, and others to expeditiously remove infringing material.

    In this article, you will learn everything you need to know about how to send a DMCA takedown notice. You will be taken step by step through the DMCA takedown process, including:

    1. Taking screenshots to preserve evidence;
    2. Identifying where to send the notice;
    3. Tips for drafting the DMCA takedown notice;
    4. What to include in the DMCA takedown notice;
    5. What to expect in response to your DMCA takedown request;
    6. Risks of sending a DMCA notice.

    What is a DMCA Violation?

    Federal law protects a person’s right to their own intellectual and artistic property. If a work of art – be it a song, book, blog post, podcast, or something else – is fixed in some tangible medium (in other words, not just in the author’s head), it is protected by copyright. This is true even if that work is not published, and even if there is no registered copyright.

    With the advent of the internet, it became easier for copyrighted materials to be copied and spread far and wide. Congress addressed the interaction between copyrighted materials and the internet in a 1998 statute called the Digital Millennium Copyright Act (DMCA).

    When a copyright holder becomes aware that their artistic property is being improperly copied on the internet, the holder can make a claim under the DMCA to have the infringing material taken down. The holder does so by sending a legal notice, known as a DMCA takedown notice or DMCA takedown request.

    A DMCA takedown notice informs a person, business, search engine, web host, or other internet service provider (ISP) that they are hosting material on their webpage or platform that is infringing on an individual or business’s valid copyright.

    What is the Purpose of the Digital Millennium Copyright Act (DMCA)?

    The DMCA was enacted to confront the complexities that the internet was causing for copyright holders. It built off of two 1996 World Intellectual Property Organization (WIPO) treaties:

    Implementing these two treaties through the DMCA served two major goals.

    First, the DMCA built on and strengthened protections of digital copyrighted material. Congress did so by creating deterrence measures for would-be violators. In particular, it became a criminal offense punishable with up to ten years in prison and $1 million in fines for violating certain provisions of the DMCA.

    For instance, the DMCA made it a criminal offense to circumvent technological measures that control access to protected works, such as by decrypting an encrypted work. The DMCA also made it a criminal offense to falsify, delete, or manipulate copyright management information – such as the author’s name or other identifying information.

    Second, the DMCA adjusted existing copyright laws to keep up with the changing technological world. The digital makeup of many copyrighted works means it is much easier to copy and disseminate them quickly and widely. The laws needed to change to address this new reality to better protect copyright holders.

    However, Congress also wanted to provide some assurance to online service providers – such as search engines and entities that allow others to post or store materials on their servers. Too much protection for copyright holders, and it could have a chilling effect on the dissemination of speech.

    The Digital Millennium Copyright Act  attempts to balance the rights of copyright holders with concerns that too restrictive laws would suppress free speech and the dissemination of ideas. It does so by providing a “safe harbor” for online service providers so long as they meet certain requirements. These are discussed in more detail below.

    How Can You Prove That Copyright Infringement is Taking Place?

    To prove a violation of the Digital Millennium Copyright Act, you must have a valid copyright that is being infringed upon. There are several elements that need to be shown to establish copyright infringement. These include:

    1. The existence of a valid copyright, which you own; and
    2. That the perpetrator infringed on your valid copyright by duplicating the work or creating a substantially similar work.

    Confirm That You Have a Valid Copyright to the Creative Work

    First, you must have the legal right to the copyright. Most often, this means that you are the original creator of the work. You do not need to register your work to have a valid copyright; it is automatic upon the work being put into a fixed form, like a photograph, audio recording, or piece of writing. You can also have a copyright in the work if you purchased it or were assigned it.

    Keep in mind that you need to be the one who created the work, or otherwise bought or acquired the work, to have a valid claim for copyright infringement. For instance, if an unflattering photograph of you is making the rounds, unless you took the photo yourself or otherwise have the rights to it, you cannot claim copyright infringement. Your friend who took the photo, however, can.

    The Perpetrator Infringed Upon Your Copyrighted Work

    Second, you must show that the infringer duplicated the original work or creative content that is “substantially similar” to the original work.

    This will involve showing how the alleged infringer could have accessed the original work, as well as comparing the infringing work to the original work.

    If only a portion of the copyrighted work was duplicated, you must show that the copied part was protected work.

    What Are the Risks of Sending a DMCA Takedown Notice?

    If you think you have an original work of authorship that is being infringed upon and send a DMCA takedown notice, the receiver of that notice has some options that can complicate matters.

    As discussed above, the recipient of the DMCA takedown notice can respond to the notice  with a counter-notice or a fair use notice. These notices say, in a nutshell, that the recipient does not think that the materials on the site violate the DMCA – either because they are not copyrighted or because the recipient’s use of the materials is protected under the fair use exception to the DMCA.

    Under the fair use doctrine, limited portions of a copyrighted work may be used for certain purposes – such as commentary, criticism, news reporting, and scholarly reports, depending on the circumstances of the use.

    You should also assess the risk of retaliation before sending a DMCA takedown notice. Although rare, a recipient of a DMCA notice can sometimes be egged on by the notice and start posting more content about you, or disseminating your copyrighted information more widely, resulting in what is commonly referred to as the ‘Streisand Effect’. Some recipients have even gone as far as doxing the copyright holder, or publicly posting the request.

    Finally, be aware that you can be sued for frivolous or bad faith takedown notices. This is also rare, but it happens. Do not send a takedown notice unless you can defend it, and are prepared to defend it in litigation if need be.

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    Types of Content That Can & Cannot Be Removed With a DMCA Takedown Notice

    Above we discussed what to include in a DMCA takedown notice, when is the right time to send it, and how to prove copyright infringement. Below, we examine the types of content that can and cannot be removed with a DMCA takedown notice.

    Not all material qualifies for copyright protection. In the next section, we discuss what materials are and are not subject to DMCA takedown requests. This will allow you to maximize your chances of getting the outcome you want when you send a DMCA takedown notice.

    What Types of Content Can Be Removed With a DMCA Takedown Notice? 

    U.S. copyright law protects original works of authorship that are in fixed form. Traditionally, these include items like:

    • Photographs, including selfies,
    • Videos,
    • Music,
    • Logos,
    • Music, podcasts, and other audio works,
    • Books, memos, blog posts, and other written works,
    • Illustrations, designs, and art, and
    • Computer software code.

    This is not meant to be a definitive list. However, some items cannot be copyrighted. These are discussed below.

    The DMCA is a U.S. law, and so applies to all content hosted in the United States. The corollary to this is that the DMCA does not apply to content that is hosted outside the United States. However, content hosts outside of the United States may still voluntarily comply with a DMCA takedown notice.

    Minc Law DMCA Tip: If you find compromising and private images of yourself published on the internet, you may be able to rely on copyright law to fight back against this form of revenge porn by sending a DMCA takedown notice. For further reading, make sure to check out our blog post ‘What to Do If someone is Distributing Your Intimate Images Without Consent’.

    What Types of Content Can’t Be Removed With a DMCA Takedown Notice?

    Copyright registration does not generally protect things that can be arrived at on one’s own accord. This is meant to encourage free speech and the proliferation of ideas – if any thought or comment could be copyrighted, the world would be full of lawsuits.

    To this end, you generally cannot copyright titles, names, short phrases, and simple, easily recognizable designs. You also cannot copyright ideas, processes, systems, methods of operation, concepts, principles, or discoveries.

    The DMCA requires removal only of infringing materials – not defamatory materials. For instance, if an ex posts an unflattering selfie of you on a shaming website along with false and scandalous allegations about you, the DMCA might require removal of the image, but not the defamatory statements.

    These defamatory statements would remain live on the site unless removed through a different process. If you are in a situation like this, an experienced  internet attorney can help you pursue both copyright and defamation claims.

    Can You Request a DMCA Takedown With an Internet Service Provider?

    Internet Service Providers (ISPs) enjoy a limited liability under the Digital Millennium Copyright Act. The DMCA provides “safe harbor” protections for ISPs who store infringing material, making them immune from copyright infringement liability as long as they closely adhere to the DMCA’s safe harbor provisions.

    Generally, the DMCA’s safe harbor protections extend to the following types of services that ISPs provide:

    • Acting as a conduit for the trafficking and transmission of infringing content. So long as certain conditions are met – such as the transmission being automated and the storage being transient – the ISPs will not be liable.
    • System caching. ISPs who engage in caching – or creating temporary copies of material for future faster access – will generally not be liable for the act of caching.
    • Information residing on systems or networks at the discretion of users. ISPs that act as hosts for other users are also shielded from liability if they follow several conditions. In particular, the following three requirements must be met:
      1. The ISP must not have actual knowledge of the infringing material and not be aware of facts or circumstances that the material or activity on their system is infringing. An ISP will be presumed to have knowledge upon the receipt of a takedown notice. An ISP will also be presumed to have knowledge if the infringing activity was apparent to a reasonable person, although this is harder to prove.
      2. The ISP cannot receive a financial benefit directly attributable to the infringing activity/content.
      3. The ISP must, upon notification of the claimed infringement, respond expeditiously to remove or disable access to the infringing material.
    • Information Location Tools. An ISP will not be liable for linking users via a tool (think web search engines) to an online website or location which contains infringing content or material. As with the above safe harbor, this protection will apply as long as the ISP has no knowledge that the online location hosts infringing content and material, does not obtain direct financial benefit from linking to the content, and expeditiously removes the infringing material when aware of it.

    When is the Right Time to File a DMCA Takedown Notice?

    A DMCA takedown notice should be filed as soon as you discover infringing material online. It is possible that the material may have been online for some time.

    While this is not necessarily legally problematic, you will want to send a DMCA notice as soon as you discover the copyright infringement in order to best preserve your rights.

    How to Send a DMCA Takedown Notice

    We discussed above what material must be included in a takedown notice. But there are several steps you should take before preparing your takedown notice.

    Preserve Evidence of the Infringing Material or Website

    First, you will want to take screenshots of the infringing material or infringing website, since an effective DMCA takedown notice will cause the infringing material to be removed. You want to maintain a record of any infringing materials in order to preserve evidence that you can use in the DMCA takedown notice and, potentially, in future legal actions.

    Screenshotting your screen on either your mobile device on your computer is an acceptable way to preserve evidence and create a record. Alternatively, you can consider using preservation software such as Visualping or Page Vault, particularly if there are numerous images, videos, or websites involving the infringing material.

    Identify Where to Send the DMCA Notice

    Second, you need to identify where to send the DMCA. To properly send a DMCA you must know where to send it! You can send your notice to whoever has published your content, whether it be a person, website, hosting or internet service provider, or the website registrar.

    Examine the website that is hosting the copyrighted content and look for their Terms and Conditions policy. Often, the Terms and Conditions outline the DMCA process, including to whom to send the notice. Try searching the page for “Copyright,” “DMCA,” or “Agent of Notice” to easily find the correct contact. Some sites even have an easy-to-use form that you submit right on the site.

    For some less reputable sites, like cheater sites or public shaming sites, the official business entity to send the DMCA complaint to can be unclear, and you may need legal help to find the correct entity.

    Draft the DMCA Takedown Notice

    Third, you need to start drafting your takedown notice. All the following items must be included in your DMCA notice.

    Eliminating or forgetting even one of these elements could result in your notice being denied or ignored. That means that the infringing material may stay up longer, or may not come down at all. These steps are technical and must be followed exactly.

    What to Include in a DMCA Takedown Notice

    Here are the items you (or your attorney) must include when drafting an effective DMCA takedown notice:

    1. Identify the Work: What is the creative work that is being infringed on? For example, is it a blog post that you wrote? An image that you photographed? A graphic that you designed?
    2. Location of the Infringing Content: Where is the content hosted? Do not just say ‘Blogspot’ but rather include the direct link to the content. If it is an image, make sure you include the direct link to that image.
    3. Good Faith Statement: This is a short statement that you, or anyone acting on your behalf, are acting in the good faith belief that the content is not authorized to be used.
    4. Penalty of Perjury: A statement that all information contained in the notice is accurate under penalty of perjury.
    5. Name and Signature: This can be an electronic signature, however, it is best to include “/s” to show that the notice was actually signed and is not an autofill.
    6. Contact Information: This is information about how the copyright owner or their authorized representative can be reached. Typically, you would want to include your name, email address, mailing address, and phone number.

    If you are unsure what to include in your DMCA request or are uncomfortable drafting it yourself, you may want to consider hiring an experienced internet attorney to do this for you. Though you do not need an attorney to send a DMCA, it is always good practice to have an attorney assist you so that you know all the elements are met and you are acting in good faith.

    Depending on the complexity of the case, the costs of preparing and sending a DMCA takedown notice can vary considerably. Using a reputable law firm with extensive experience drafting and sending DMCA takedown notices, like Minc Law, can help cut down on attorneys’ fees considerably.

    At Minc Law, copyright infringement and DMCA takedown services typically only form part of a broader legal representation that we provide for defamation, internet privacy, and internet-related harassment matters.

    If a client’s situation primarily involves an hourly non-litigation copyright issue, we generally require a $3,500 to $5,000 retainer fee. However, this number can be higher depending on the circumstances of your case. Minc Law attorneys then bill hourly against the retainer as work is performed

    Sample DMCA Takedown Notice

     

    Send the DMCA Takedown Notice to the Infringing Party

    Finally, once you have finished your takedown notice, it is time to send it. Your request will either be granted, denied, counter-noticed, fair use-noticed, or ignored completely if your request is not accurate.

    If a DMCA counter-notice is filed, you may have to begin litigation to remove the content.

    How Long Does a DMCA Takedown Take?

    DMCA takedowns can take anywhere from 24 hours to six months to be honored by the infringing party or ISP, depending on the site and circumstances.

    For example, if the content is hosted on a site that allows posts from third-party users, like Facebook or YouTube, the social media platform will provide notice to that account holder and allow them time to respond. Once this happens, the account holder may opt to remove the content, dispute the request, or file a counter-notice.

    Another factor that affects the DMCA removal timeline is how busy the site is, and how many requests they have to process. If it is a mainstream site, they may have numerous pending DMCA takedowns, which can slow the process.

    As noted above, some ISPs are not eager to respond to DMCA notices and can delay or muddle the process.

    What Happens If You Receive a DMCA Notice? DMCA Counter-Notices Explained

    If your ISP receives a DMCA takedown notice, they are required to inform you that your material has been removed. If you disagree with the removal, you have the option to file a DMCA counter-notice.

    Once you receive the copyright violation notice, you will want to examine it to make sure all the components of the DMCA notice have been met. These requirements are discussed below. You are not legally bound to comply with an erroneous request – for instance, if the individual sending the DMCA notice does not own the copyright, there is no violation.

    Alternatively, you  may believe that the use of the copyrighted material was “fair use.” This exception is also discussed below. Even if you think that your use of the material is fair, you can choose to voluntarily comply with a request to avoid future issues.

    If, after reviewing the violation notice, you want to contest it, you can file a counter-notice.  A counter-notice is a response to a valid DMCA takedown notice, contesting that you are in violation of the DMCA. The information that must be included in the counter-notice is discussed below.

    Note that when you file a counter-notice, you are required to give your consent to being sued in federal court.

    How to Send a DMCA Takedown Counter-Notice

    Before responding to a DMCA notice with a counter-notice, it is wise to do some research to make sure you understand the consequences. Fighting a DMCA notice could land you in court!

    If you receive a takedown notice the first thing you should do is investigate. You want to make sure that you are not unintentionally hosting infringing content. If you have any doubt that you may be infringing upon the content then do not send a counter-notice! If the complaining party has a valid copyright infringement claim, you could be opening yourself up to a lawsuit.

    If, after doing some investigating, you find a valid reason for filing a counter-notice then you may elect to draft one. The most common reasons for filing a counter-notice are:

    • Your use of the copyrighted work falls under fair use. Fair use is subjective, and so you should exercise caution if you are relying on  your right to host the copyrighted information on this ground alone. While you might think it is fair use, a court may disagree.
    • The copyrighted material is owned by someone other than the complaining party.
    • The material you posted is not actually covered by copyright. For instance, the allegedly copyrighted work is a title, slogan, or idea.

    A DMCA counter-notice is filed with the ISP after the allegedly infringing materials have been taken down. Just like with a DMCA takedown notice, your counter-notice must include the following items.

    • A physical or electronic signature;
    • Your contact information;
    • Identification of the material that has been taken down and where it was located before it was removed;
    • A statement under penalty of perjury that you have a “good faith belief” the material was removed by mistake or misidentification;
    • Your consent to the jurisdiction of a federal court in the district where you live, or, if you do not live in the United States, any judicial district where your service provider is located;
    • Your consent to accept service of process from whoever submitted the takedown notice, or that party’s DMCA agent.

    Work With Experienced Internet Attorneys to Protect Your Copyright & Send a DMCA Notice

    An experienced attorney with expertise in DMCA notices can help you analyze your next move after you have discovered your copyrighted material has been unlawfully copied. They can also help you register your copyright with the U.S. Copyright Office and reduce the risks involved in the DMCA process.

    At Minc Law, we can help you evaluate all your legal options for content removal, and help ensure you are taking the necessary steps to protect your rights.

    ★★★★★

    “I had a copyright infringement case which had gone unresolved for more than five years. Brinton Resto successfully resolved this issue for me in less than six months. I am thoroughly delighted with his work and the work of the firm. 100% recommend Brinton and will absolutely work with him again should I ever have any case involving telecommunications or IP law.”

    Sonya Dunne, Mar 15, 2021

    Contact the experienced internet attorneys of Minc Law today. Schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, speaking with a Chat representative, or by filling out our contact form online.

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