In this comprehensive guide and blog post, we’re going to take you through what the Digital Millennium Copyright Act (DMCA) is, how to send an effective DMCA takedown notice, several important legal cases and nuances you should be aware of, various DMCA Safe Harbor Provisions, common strategies and tips for removing copyrighted material, and more!
- To send an effective DMCA Takedown Notice, you should employ the following five (5) steps:
- Preserve the evidence of the copyrighted material by taking screenshots,
- Identify the scope of the DMCA Takedown Notice and the parties,
- Locate the website or ISP’s host (ex. WHOIS/Who is Hosting This),
- Determine the proper copyright agent (ex. Searching U.S. Copyright Office list of DMCA agents),
- Consider the scope of the content requested to be removed,
- Draft a DMCA Takedown Notice which includes the following six elements;
- Identification of the copyrighted work that is being infringed,
- Identification of the material claimed to be infringing,
- Good faith statement that you believe the work is not authorized by the original copyright holder,
- Statement you are the copyright holder or authorized to act on behalf of them (under penalty of perjury),
- Name and electronic signature (/s..),
- Adequate contact information so you can be reached (name, phone number, address, email).
- A DMCA Takedown Notice is a legal notice informing a person, business, search engine, web host, or other Internet Service Provider (ISP) that there is material on their website infringing on a person’s valid copyright. Most notably, DMCA Takedown Notices are used to expeditiously remove copyrighted material in digital form.
- There are numerous benefits as to why a copyright holder should register their copyright with the U.S. Copyright Office, including;
- Grants the ability to file copyright infringement lawsuits,
- Enables plaintiffs to recover statutory damages for copyrighted works (ex. $750-$30,000 per work at the court’s discretion, or $150,000 per work if plaintiff is able to prove “willful infringement),
- Establish public record and notice of one’s copyright,
- Assist in avoiding copyright ownership disputes (thanks to notice), and
- Enforcement of temporary injunction rights.
Online Libel Removal Tip: There’s several free and easy methods for online defamation victims looking to remove or suppress defamatory content from Internet search results; (1) Utilizing good search engine optimization practices to suppress negative content (2) Sending a cease and desist letter (this should be done with caution), (3) Linking all social media profiles to create a “spiderweb” of positive online content which Google recognizes.
If you’ve been the victim of online defamation or other malicious and false attacks, contact the Internet defamation removal attorneys of Minc Law ASAP! At Minc Law, we understand the ins and outs of United States libel and defamation law, and have removed over 25,000 pieces of content/websites in our tenure.
Furthermore, we’ve litigated in over 22 states and 3 countries, and worked tirelessly with countless website administrators, online content managers, and third-party arbitration firms to secure swift and seamless removed. And, we boast a nearly 100% online defamation removal and takedown rate.
The online abuse stops today!
Table of Contents
- History & Purpose of the DMCA
- DMCA Safe Harbor Provisions & 3 Notable DMCA Cases
- What is a DMCA Takedown Notice? Fundamental Components
- Common Strategies & Tips For Removing Copyrighted Material
- The DMCA Counter-Notice Process & Bad Faith Takedowns
- Work With the Experienced Online Defamation Attorneys of Minc Law Today!
History & Purpose of the DMCA
Sending an effective DMCA takedown notice isn’t just about drafting a well structured notice and checking all the necessary boxes – it’s about understanding the purpose behind it, how to best serve your client’s goals, and ensuring it’s taken seriously and gets the job done. In order to draft a well-structured and effective DMCA takedown notice, you should be at least familiar with its background and purpose.
In this section, we’re going to walk you through the history of the Digital Millennium Copyright Act and its fundamental purposes.
First, let’s get started with the basics; the history behind the DMCA and its fundamental purpose.
History of the Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a United States copyright law passed in 1998 administering two previous 1996 World Intellectual Property Organization (WIPO) treaties;
- WIPO Copyright Treaty (WCT): a special agreement and treaty governed by the Berne Conventionaimed at protecting works and the rights of authors in a digital age and environment.
- WIPO Performances & Phonograms Treaty (WPPT): an international treaty adopted in furtherance of developing and protecting the rights of performers (actors, musicians, singers, etc…) and producers (persons or entities which hold responsibility over the fixation of sounds) of phonograms.
So, what was the purpose behind the drafting of the DMCA if there were already two major copyright treaties in effect?
The DMCA was implemented due to a necessity for regulation governing the dissemination of new technology, devices, and services which were created in furtherance of circumventing controlled access to copyright works.
Specifically, the DMCA can be viewed as an “update” to existing copyright laws, to make sure they are in line with a more modern digital landscape. The Digital Millennium Copyright Act brought about two major overhauls and additions:
- Criminalizes the production and circumvention of services, technology, and other devices which control access to copyrighted works, and
- Increases penalties for copyright infringement on the Internet.
And, that’s not all.
In relation to Internet defamation and online takedowns/removals, the DMCA’s fundamental advancement and innovation is the codification of exemption of liability for Internet Service Providers (ISPs), plus quicker takedowns of infringed content and media.
Now, let’s take a look at the core parties the DMCA affects and protects.
United States Defamation Law Fact: The United States is generally considered a more pro-defendant defamation jurisdiction due to its long standing history of enforcing the First Amendment and U.S. Constitution. This can often lead to having to explore other avenues to remove malicious or unwanted online content, such as with a DMCA takedown notice. On the other hand, European countries and other Commonwealth jurisdictions (United Kingdom, Canada, and Australia) are typically considered pro-defendant defamation jurisdictions.
Who the DMCA Protects & Affects
The Digital Millennium Copyright Act primarily protects and affects two core parties; copyright owners and Internet service providers (ISPs).
|Copyright Owners||Internet Service Providers (ISPs)|
|The DMCA provides not only a simply, but a straightforward method for copyright owners looking to remove infringed content from the Internet.||Internet service providers enjoy a limited liability under the DMCA.|
|Copyright owners can now request a third-party to remove copyrighted content, while decreasing the overall chances of having to litigate a takedown.||Furthermore, they also enjoy several notable and “safe harbor provisions,” which we will address in the next section.|
Curious as to why persons should hire an attorney to send a DMCA Takedown Notice? Check out our past articledetailing why it’s imperative you work with an experienced defamation and Internet attorney before doing so!
DMCA Safe Harbor Provisions & 3 Notable DMCA Cases
Simply put, DMCA safe harbor provisions are protections for ISPs who store infringing material, immunizing them from copyright infringement liability should they adhere to several standard technical measures for removing and monitoring content. 17 U.S. Code § 512.
Most notably, there are four fundamental safe harbor provisions protecting network service providers. Do note that each safe harbor is separate, and that just because an ISP doesn’t meet one of the four safe harbor’s requirements, it’s not an indication that they are infringing upon a copyright.
- Transitory digital network communications,
- System caching,
- Information residing on systems/networks at the direction of users,
- Information location tools.
Let’s first start with transitory digital network communications.
Safe Harbor Provision 1: Transitory Digital Network Communications
Under 512(a) of the DMCA, Internet service providers will not be liable for monetary, injunctive, or other equitable relief for infringement of copyright by way of the provider’s transmitting or routing systems.
Simply put, should an internet service provider act as a “conduit” for the trafficking and transmission of infringing content, they will not be held liable for its transmission.
However, the ISP has to make sure that the process is handled by an automated mechanism, free from human interaction and intervention, only temporarily stored in the system, and not modified at all.
Safe Harbor Provision 2: System Caching
For those unfamiliar, ‘caching’ is just a fancy term for the creation of copies of material for future faster access. Under Section 512(b), internet service providers who engage in caching in a standard practice and do not interfere with reasonable copy protection mechanisms already in place, will be protected from copyright infringement liability.
Such provision also applies to the caching and proxy servers utilized by ISPs and other providers. And, if the cashed material is exposed to end users, the system provider is under obligation to follow 512(c) takedown provisions.
Libel Removal Tip: Understand that libel and slander are two distinct types of defamation (libel refers to a written statement, while slander refers to an oral statement), and as such, they often differ in their statute of limitations time frame for bringing a claim. Due to slanderous statements being “harder to preserve,” as evidence is fleeting, slander generally has a shorter statute of limitations than libel. Make sure to familiarize yourself with your state’s respective defamation statute of limitations, or risk being barred from bringing your claim altogether!
Safe Harbor Provision 3: Information Residing on Systems/Networks at Direction of Users
512(c) is possibly the most important of the DMCA’s safe harbor provisions, as it applies to ISPs which store infringing material. Under Section 512(c), ISPs will not be liable for monetary, injunctive, or other equitable relief for the infringement of copyright by reason of the storage at the direction of its users. However; several conditions must be met in order to enjoy this safe harbor;
- 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,
- The ISP cannot receive a financial benefit directly attributable to the infringing activity/content,
- The ISP must, upon notification of the infringement, respond expeditiously to remove or disable access to the infringing material.
Note that in order to determine whether an ISP has actual knowledge of the infringing material is if; (1) they receive a notice of copyright infringement from the copyright owner, or (2) fail the “red flag test,” a subjective and objective test to weigh whether the infringing activity was apparent to a reasonable person.
Safe Harbor Provision 4: Information Location Tools
Under Section 512(d) of the DMCA, 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/material. Such protection will apply as long as the ISP has no actual (or apparent) knowledge that the online location hosts infringing content and material.
Like 512(c), should the ISP be notified of the infringing material, it must expeditiously disable access and linking to it. Furthermore, it must follow the 512(c) takedown provisions to restore order. And finally, an ISP must not derive any financial benefit from providing such link to infringing material.
Now, let’s turn to three important legal cases concerning DMCA safe harbor protections.
Three DMCA Safe Harbor Legal Cases
Let’s get started with the first case, which occurred between two media giants; Viacom and YouTube.
Viacom v. YouTube: 512(c)
In 2007, multinational media conglomerate Viacom filed a lawsuit against YouTube for copyright infringement against YouTube, seeking USD $billion plus in damages.
Viacom accused YouTube of allegedly making available, over 160,000 unauthorized clips from Viacom’s entertainment program. Due to the third-party nature of the content controlled at the direction of its users, Youtube relied on safe harbor provision 512(c); information residing on systems/networks at the direction of users.
Ultimately, the court held that because YouTube had no actual knowledge of the infringement, or the ability to control the infringing activity, they were protected under DMCA safe harbor 512(c).
IO Group v. Veoh: 512 (c)
Just one year later, adult entertainment producer IO Group filed a complaint against user-generated content platform and flash video site Veoh, alleging copyright infringement due to Veoh’s allowance of videos to be accessed through their online service. In total, the videos were accessed over 40,000 times.
Similar to the above case of Viacom v. Youtube, Veoh relied on the safe harbor protection bestowed under SEction 512(c) of the DMCA, noting that actual and apparent knowledge were both lacking. Specifically, before the copyright infringement lawsuit was ever filed, IO Group gave zero notice to Veoh of copyright infringement. Ipso facto, Veoh had no actual or apparent knowledge (no “red flags”) of obvious copyright infringement.
Additionally, the court noted that “Veoh’s right and ability to control its system does not equate to right and ability to control infringing activity.”
Ultimately, the court held that the Digital Millennium Copyright Act is not intended to have Veoh “shoulder” the entire burden of policing third-party copyrights on its website. As a result, Veoh was granted protection under Section 512(c) of the DMCA.
Let’s now turn to our final case, Flava Works v. Gunter.
Flava Work Inc. v. Gunter: Section 512(c)
In 2012, the sole proprietor of the adult site ‘MyVidster.com’, Marques Gunter’, was sued for copyright infringement by Flava Works after Flava Works’ videos were posted on MyVidster.
To combat the further spread and access to the infringing material, the court granted Flava Works a preliminary injunction, citing that there was sufficient knowledge of the infringement due to the countless notices sent to Gunter.
Gunter and MyVidster were not granted protection under Section 512(c) of the DMCA due Gunter’s actual knowledge (through notices) of the infringing material. Furthermore, Gunter was held liable for contributory infringement due to actual knowledge of the copyright infringement and his failure to prevent future infringing activity.
Internet Defamation Fact: The Communications Decency Act is a landmark and controversial piece of legislation governing Internet Service Provider immunity online. Most notably, Section 230 of the CDA grants near blank immunity to ISPs for content posted by third-parties. There are however several exceptions to the CDA, including; copyright and intellectual property infringement, material alteration by the IP, solicitation to post illegal content, content violating criminal law, and child pornography.
What is a DMCA Takedown Notice? Fundamental Components
Simply put, a ‘DMCA Takedown Notice’ is a notice and letter informing a business, search engine, web host, or other ISP that there is material on their website/platform infringing a copyright. At its very core, the purpose of a DMCA Takedown Notices is to expeditiously remove copyrighted material in digital form from the Internet.
Let’s take a look at several common questions concerning copyrights and copyright infringement.
Q. Do you need to formally register your copyright to file a DMCA Takedown Notice?
A. No! Formal copyright registration is not needed to own copyrights or to send a DMCA Takedown Notice.
Under the DMCA, work is under copyright protection the moment it is created and fixed in a tangible, perceptible form, regardless of registration status.
Q. So, what’s the purpose/benefits of registering your copyright?
A. Registering your copyright enables heightened protection of one’s authored work, through:
- Ability to File Copyright Infringement Lawsuits: In most U.S. jurisdictions, copyright owners cannot file copyright infringement lawsuits until the U.S. Copyright Office has granted them a registration (this can take up to 7 months).
- Recovery of Statutory Damages: Authors may claim anywhere from $750-$30,000 per work and at the court’s discretion. Furthermore, they may recover up to $150,000 per work if they are able to prove there was “willful infringement.” No registration means that authors may only receive an award for actual damages and profits available (two things quite difficult to prove).
- Establish Public Record & Notice: By establishing a public record of copyright ownership, copyright holders are able to better dispute any infringement claims. Specifically, establishing a public records helps affirm that date on which you filed your copyright, precluding others from subsequently claiming a copyright for the same material/content. Furthermore, it establishes your legal right to the work.
- Avoid Ownership Disputes & Conflict: Simply put, a copyright registration helps avoid copyright ownership disputes and conflict by providing a tangible record of creation.
- Temporary Injunctive Rights & Relief: Copyright registration sanctions users to obtain temporary injunctive rights and relief, which could ultimately help further dissemination at a crucial time for a work. For example, a brand owner might be able to obtain a preliminary injunction to prevent a competitor from selling their product.
Copyright Infringement Fact: Copyright infringement may also be referred to by several other names, including; piracy, theft, and freebooting. Freebooting particularly has been used to refer to the unauthorized copying of online videos onto other popular websites, such as YouTube, Twitter, and Facebook. “Freebooting” is a combination of the terms “freeloading” and “bootlegging.”
Q. What types of content can be removed with a DMCA Takedown Notice?
A. DMCA Takedown Notices may be utilized to remove any original work of authorship. This includes works that are; literary, artistic, musical, dramatic works, photographs, videos, profiles, stories, movies, computer software (code), songs, architecture plans, poetry, novels, and much more.
Keep in mind that this is a non-exhaustive list of all the potential works that can be removed and protected with a registered copyright.
Q. What types of content can’t be removed?
A. Copyright registration does not generally protect things which can be arrived at on one’s own accord. Specifically, you cannot copyright; ideas, systems, methods of operation (these can be if expressed), trademarks (phrases, words, designs, identifying source of goods), and hyperlinks to content.
Note that it’s still an unsettled matter of law whether a DMCA Takedown Notice is appropriate in cases where a website contains links to infringing materials. This is something that is likely to be determined by the courts on a case by case basis, as it’s almost always debatable.
Now that we’ve answered some of the most common and pressing questions surrounding copyrights and copyright registration, let’s take a quick look at the components required in a DMCA Takedown notice.
Q. Are Websites and ISPs required to remove copyrighted material under the Communications Decency Act?
A. The Communications Decency Act is at the very heart of Internet disputes surrounding online content removals due to the near blanket immunity it bestows on websites and ISPs. Specifically, Section 230 of the Communications Decency Act (CDA) immunizes websites and ISPs who facilitate a user-generated content platform, meaning third-party users create and curate the bulk of the content.
However, there are several notable exceptions to the CDA, where websites and ISPs are required to remove content. The most pertinent to this blog post is the ‘Intellectual Property Exception’ to the Communications Decency Act, which enables users to remove content which infringes upon a person’s copyright, trademark, or patent.
Do note that such exception does not extend to state right of publicity actions, concerning the right of a party to control the commercial use of their name, likeness, image, or other quality.
Several other notable exceptions to Section 230 of the CDA include; criminal law violations, child pornography, the material alteration of content by the ISP, and promissory estoppel.
Components of a DMCA Takedown Notice
There’s six fundamental elements that comprise a DMCA Takedown Notice. Make sure to include all six when drafting your DMCA Takedown Notice.
- Identification of Work: identification of the copyrighted work that is claimed to be infringed.
- Identification of Material: identification of the material claimed to be infringing upon one’s copyrighted work/authorship.
- Good Faith Statement: statement that you have a good faith belief that use of the identified infringing material in the manner complained of is not authorized by the copyright owner.
- True Copyright Holder: statement that you are the true copyright holder or an authorized agent of the copyright holder, and that the information contained in the Takedown Notice is accurate under penalty of perjury.
- Name & Signature: the statement must be signed by the copyright holder or the authorized agent.
- Contact Information: sufficient contact information so that the copyright holder or authorized agent can be reached (ex. Name, phone number, email address).
Provided a DMCA Takedown Notice complies with the above elements and Section 512 of the DMCA, then a provider must expeditiously remove or disable user access to the infringing content/material – otherwise, the ISP or website will lose any protection under the respective Safe Harbor Provisions of the DMCA.
Such process is known as “notice and stay down,” which refers to the concept by which platforms and ISPs must not only remove the material, but prevent the same works/material from arising and becoming available in the future. For example, YouTube boasts a comprehensive “Content ID” system, which seeks to actively filter past copyrighted works and prevent their re-uploading to the site.
DMCA Takedown Notice Example Letter
Let’s turn to a few examples to help you better understand how to draft an effective DMCA Takedown Notice. As you’ll see, it’s relatively straightforward and short, however; you must make sure to include all relevant details and accurately define the scope and location of the content/work!
DMCA Takedown Notice Sample Letter
“My name is [Insert name here], I am attorney with the authority to act on behalf of [Client’s name]. A website that your company hosts and owns, [Insert website] is infringing on at least one copyright owned by [Client’s name].
A [review/comment/post/other work of authorship], an original work of authorship, that [Client’s name] wrote has been copied onto your servers without permission. The infringing work that [Client’s name’ owns the copyrights to, appears at the following web URL: [Insert URL].
The following is a verbatim copy of the infring work that appears on the URL:
“[Insert verbatim copy of infringing work].”
This email is official notification under Section 512(c) of the Digital Millennium Copyright Act (“DMCA”), and I seek the immediate removal of the aforementioned infringing material from your servers.
I am providing this notice in good faith and with reasonable belief that [Client’s name]’s rights are being infringed. Under penalty of perjury, I certify that the information contained in this notification is both true and accurate and I have the authority to act on behalf of the owner of the copyrights involved.
Should you wish to discuss this with me, please contact me directly. My contact information is below.
/s/ [Insert Attorney/Agent signature]
[Insert Attorney/Agent contact information].”
Copyright Infringement Fact: An owner of a copyright enjoys numerous exclusive rights, such as; the right of reproduction (copy, reproduce, or duplicate the original work), the right to prepare derivative works based on the original authorship, the right to distribution (rent, sell, license, or lease the original work), the right to performance (the right to perform publicly via digital or audio transmission), and the right to display.
Common Strategies & Tips For Removing Copyrighted Material
Now that we understand the components of a DMCA Takedown Notice and have looked at several examples, let’s take a further look at common strategies/tips employed when seeking to remove copyrighted material from the Internet.
There’s two core tips you should keep in the back of your mind when drafting an effective and comprehensive DMCA Takedown Notice; define the scope of the DMCA/Parties, and define the scope of the content. Let’s take a look at the first consideration you should take into account when drafting.
Define the Scope of the DMCA & Parties
The first question you should consider when putting pen to paper is the timeframe of sending the notice.
When should you send a DMCA Takedown notice?
It’s extremely important to know your audience before sending a Takedown Notice, as not all user-generated content platforms and websites are made equal. Furthermore, it’s not unheard of for cheater/scam/consumer advocacy/homewrecker website to retaliate and further publicize defamatory and other offensive online content after receiving a cease and desist or DMCA Takedown Notice.
Know your audience. Always weigh the severity of the potential publicity from sending a Takedown Notice and how the adverse party will react to an attempted removal. A DMCA Takedown Notice could lead to the ultimate and complete removal of content and photographs, or lead to the Streisand Effect – where information is further disseminated to the public. Always contemplate the host’s reaction to receiving such a letter and the likelihood of them disabling them content.
Once you’ve determined who the recipient is and weighed the pros and cons of sending a DMCA Takedown Notice to said party, it’s important to completely narrow the scope of the parties. Oftentimes, when dealing with ISPs and online websites, there’s several parties behind the platform. Remember, you’re not likely sending a Takedown Notice to the third-party user who posted the content on the site, rather the ISP themselves. You can usually find relevant information at the party responsible for removing content on a UGC’s ‘Contact’ page.
Additionally, make sure the Takedown Notice isn’t frivolous, as this generates a higher likelihood that the ‘Streisand Effect’ may take effect. The point of a DMCA Takedown Notice is to remain as low key as possible. Know that less is more when drafting.
Ohio Defamation Law Fact: You might be wondering whether a party can retract, correct, or clarify a defamatory statement before litigation in Ohio. Although Ohio defamation defendants may retract defamatory statements prior to litigation, such retraction won’t actually bar a plaintiff’s action. However, a retraction of a defamatory statement may give rise to mitigated damages.
Who is Authorized to Send the DMCA Takedown Notice?
Consider who has the actual authority to send the Takedown Notice. What authority do you, as the agent or attorney for a victim/entity, have to send it? Is your client the absolute copyright owner? And, did the copyright owner give you consent to act on their behalf?
Has a court authorized the removal? And finally, are the circumstances for removing the copyrighted content justifiable (ex. Anonymous submission or revenge porn)?
To Whom/Where Should You Send a DMCA Takedown Notice?
Once you’ve defined the scope of the parties, it’s important to understand where to send the DMCA Takedown Notice.
First, before looking to the U.S. Copyright Office for help, check out the website’s terms, policies, and abuse terms. Oftentimes, there will be relevant information for where to send DMCA Takedown Notices and other legal letters.
Next, locate the website’s host. There’s plenty of free ways to search for a website’s host (ex. WHOIS, Who Is Hosting This, etc…).
Finally, determine the copyright agent. A great first place to start is by searching the U.S. Copyright Office list of DMCA agents.
If you’re unable to locate a party and are running out of options for removal, consider submitting a DMCA Takedown Request with Google. Google’s submission form provides a simple and effective mechanism for copyright owners and agents to remove content. Do note that Google will conduct their own independent investigation and assessment of a piece of content, and may decline to remove URLs when there is not enough information provided.
What should you do if you need to file a DMCA Takedown Notice in another country?
Unfortunately, when dealing with removals in the European Union, there are currently no explicit rules regarding notice of copyright infringement, the takedown process, or the counter-notice process.
However, the basis for content takedown procedures and notice is governed under Article 14 of the Electronic Commerce Directive. Under Article 14, online platforms and hosts will not be liable for illegal activity and materials placed on its platform by users, as long as they do not have “actual knowledge” of the activity/material. Unfortunately, it does not outline notice and takedown procedures, only suggesting that voluntary agreements between various consumer associations and trade bodies should handle such processes.
Absent explicit rules regarding notice and takedown of content, takedown procedures are minimal and ill-defined.
The overall lack of clarity and vast legal uncertainty surrounding this can make it a difficult legal landscape to navigate. Ultimately, such takedowns will be determined on a case-by-case basis. We also recommend reaching out to local (international) counsel to gauge the best respective practices for removing copyrighted content.
Now, let’s turn to our second tip to drafting an effective and comprehensive DMCA Takedown Notice; define the scope of the content.
Define the Scope of the Content
At a DMCA Takedown Notice’s very core is the definition and scope of content to be removed. Without properly or adequately defining it, the chances of a successful removal significantly decrease.
As you’re not trying to draw attention to the infringed work’s online presence, keep the scope of the work as broad as possible! You don’t want to encounter a situation where the picture is removed, but a header above the picture remains with unsavory information (ex. “So and so is a scammer”).
If you’re request is too narrow, there’s a good chance that the ISP or website in question will likely find a way to skirt completely removing the content.
Understand that any time you send a DMCA Takedown Notice and attempt to engage in a takedown of copyrighted material, there’s a chance you may be hit with a counter-notice – or a valid response to a DMCA Takedown from the accused party.
Online Brand Reputation & Monitoring Tip: Establish an online brand reputation and monitoring budget is extremely important for individuals, businesses, and services looking to keep an eye on their online presence. Not only is it an effective way to understand how the general public perceives your business/service/product, it’s a great way to locate intellectual property infringers.
The DMCA Counter-Notice Process & Bad Faith Takedowns
Simply put, parties subject to a DMCA Takedown Notice and copyright infringement claim can file a counter-notice – a response to a valid DMCA Takedown Notice contesting the matter. DMCA Counter Notices are an important safeguard and balance to the overarching power that the copyright takedown process bestows upon copyright holders and acts as a “buffer” against frivolous and false takedown notices.
Similar to a DMCA Takedown Notices, parties and agents drafting a counter-notice have several boxes they need to check in order for it to be valid. Let’s take a look at the requisite elements for an effective DMCA Counter Notice.
- Electronic signature and contact information: Include an electronic signature along with identifying contact information.
- Identification of infringing activity/content: Make sure to identify the alleged infringing activity/content to be removed, along with the location on the website the material appeared before it was removed or disabled.
- Good faith statement: A statement under penalty of perjury that you or your client has a good faith belief that the material that was removed/to be removed is a result of a mistake or misidentification of the material to be removed/disabled.
- Contact information: Include you or your client’s name, address, telephone number, and a statement that person consents to being sued in federal court and the jurisdiction where the address is located, or where the service provider is found if they are outside of the U.S.
As you can see, much of the language for a DMCA Counter Notice is taken from the original DMCA Notice requirements. However, do note that the most important distinction is the consent to being sued in federal court and the jurisdiction of the matter.
After filing a DMCA Counter Notice, the disputed work/authorship must remain offline for minimum 10 business days. And, if no action is taken by the original sender/party, then the work may be restored online.
While counter notices seem like a no-brainer and an easy letter to send, parties generally do not send counter notices for several reasons;
- You consent to be sued,
- The process is typically more difficult than it appears, and
- The person generally is not the copyright holder or did not provide adequate information to be contacted to file a counter-notice.
Keeping in line with the need for safeguards for frivolous and unnecessary DMCA Takedown Notices, we’re now going to take a look at ‘bad faith’ takedowns.
DMCA 512(f): Bad Faith Takedowns & Counter-Notices
Under Section 512(f) of the DMCA, “Any person who knowingly materially misrepresents under this section;
- That material or activity is infringing, or
- That material or activity was removed or disabled by mistake or misidentification…
…shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation…”
Understand that 512(f) is not only limited to authors of copyrighted works, but also applies to ISPs. Internet service providers can also file!
Furthermore, most 512(f) lawsuits will fail due to the subjective intent standard employed when assessing them, where unless they are completely and obviously fraudulent, they will almost never be successful. Let’s turn to an important case showing just what happens when a party alleges material representations in violation of DMCA 512(f); Tuteur v. Crosley.
Tuteur v. Crosley: Case of the Raging Blogs
In late 2013, Tuteur, a gynecologist from Massachusetts, filed a lawsuit against the defendant, Crosley, over several blog articles written by Crosley.
The blog posts and heated online discussion/posts centered around the merits of birthing children at home, which lead to Crosley publishing a blog post titled, “This One’s For You, ‘Dr. Amy’,” with a photo of herself giving the middle finger. Subsequently, the plaintiff, Tuteur, published a rebuttal blog, with an accompanying picture of Crosley.
Because Tuteur had republished a photo of Crosley, and did not have consent or copyright to the photograph, Crosley sent a DMCA Takedown Notice to Tuteur’s website host – BlueHost. Following the DMCA Takedown Notice, BlueHost terminated their contract with Tuteur and disconnected access to the website.
Tuteur responded with a lawsuit under 512(f), alleging that Crosley failed to fulfill the six requisite elements required for takedown notices and sent the DMCA Takedown Notice in bad faith.
Ultimately, the district court questioned whether Tuteur had a viable cause of action against Crosley, as the takedown notice appeared to conform to the letter requirements under DMCA 512(c)(3), and ruled that there was no material representation by Crosley.
The court further opined that there is no requirement in the DMCA that a notice-sender inform the ISP of an infringer’s potential affirmative defenses, only their good faith belief that the authored and infringed work is being used without permission.
Copyright Infringement Removal Tip: Under DMCA 512(h), there’s a little known way to subpoena service providers for the identity of alleged copyright infringers. Simply send a letter request to the clerk of the district court to issue a subpoena in accordance with Section 512(h), and send a copy of a DMCA Takedown Request, proposed subpoena, and sworn declaration identifying the infringer sought and that the information will only be used for the purpose of protecting rights under the title.
In today’s current DMCA legal framework, there’s three core abuses associated with takedowns. Let’s take a quick look at all three.
- Fair Use: This legal defense has long been a grey area in the DMCA legal landscape, which has resulted in an imbalanced approach to specific cases.
- Imbalance of Power: DMCA Takedowns have often been used as a bullying tactic by larger corporations, looking to assert force and power over small competitors. Takedowns have generally favored larger copyright holders, due to their influence in society. Unfortunately, this has resulted in countless accidental takedowns of legitimate material and content.
- Takedowns of Legitimate Content: Due to the overall lack of consequences for perjury claims, the U.S. DMCA legal landscape has seen its fair share of takedowns of legitimate content. The removal of such content can lead to severe financial consequences for victims, who often have no legal recourse or chance of reimbursement for financial loss. This practice is commonly used by businesses looking to thwart and censor competitors.
Work With the Experienced Online Defamation Attorneys of Minc Law Today!
Have you been the victim of libelous or malicious online attacks and want to have them removed? Reach out to the nationally recognized Internet defamation attorneys of Minc Law ASAP! At Minc Law, we know the ins and outs of United States defamation and libel law, and have secured the swift and effective removal of over 25,000 pieces of content/websites, litigated in over 22 states and 3 countries, and support a nearly 100% online defamation take-down rate.
And, we conduct certain removals all for a flat, reasonable fee.
What are you waiting for? It’s time to take back your online reputation and narrative today!
So, what can you expect when working with the Cleveland-based Internet defamation removal attorneys of Minc Law?
- Open Channels of Dialogue & Communication: Some Internet defamation attorneys will go missing once the online defamation takedown process has begun. Not us. At Minc Law, we understand how important it is to be kept up-to-date with the latest details of your case and removal. Rest assured, we’re here to keep you in the loop.
- Courtesy & Respect: We treat all of our clients with the utmost respect and courtesy. Know that when working with us, we’re here to advance your best interests. After all, your goals are our goals.
- Websites Respond to Us: As we’ve mentioned above, we’ve secured the effective removal of over 25,000 pieces of content/websites, and have a proven track record of securing cost-effective and swift results. Websites and businesses respond to Minc Law.