DMCA – A few things to remember

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In the last post, I told you how to prepare a DMCA Takedown notice, but I also mentioned a few caveats. Some of those are:

  • As I’ve said before, make sure you have all of the elements of the notice. It’s really not that hard.
  • In a similar vein, don’t lard up the notice with a ton of extraneous language. Lawyers in particular love to do this, but typically it just makes things more complicated for anyone who has to read it and slows the process. Often, the longest letters also leave out critical elements, which means they are actually less effective than a straightforward, simple notice. No one needs the back story – if the item is infringing we don’t need to know that the website belongs to your Uncle Max, who snuck the photo from your grandmother’s basement.
  • The DMCA is a pretty easy way to take down content which is copied, but that also makes it tempting to use for items which you want removed but for which you do not actually have the copyright (e.g., that unflattering photo of you which was actually taken by someone else, or that photo in your grandmother’s basement which you probably didn’t take). You can be held liable for false or inaccurate DMCA notices, so keep that in mind.
  • The DMCA is not for trademark complaints, although some service providers ask for a trademark notice which incorporates some of the elements of the DMCA. Don’t be surprised if a DMCA notice for a trademark matter doesn’t result in an immediate takedown (or any takedown at all).
  • While DMCA notices are most often sent to web hosting companies (and Google), anyone who has third-party content on their website, from comments to contributions, can and should register a DMCA agent. Before sending a cease and desist to a website, consider whether the content is actually the website owners and, if not, check to see if they have a DMCA agent
  • Unfortunately, people intent on copying online materials will often change providers as soon as the first notices are received, so before sending that angry followup to the host make sure the materials are still hosted with them

Unfortunately, as many frustrated writers and photographers have found, combating copyright infringement online resembles a game of whack-a-mole, so you may have to prioritize your copyright battles accordingly.
Next, we’ll find out what happens after your notice arrives at the web host.

DMCA – The takedown notice

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Since we’re on the topic of the DMCA, I thought I’d put together a primer on the DMCA takedown and notice procedures. As I mentioned in my last post, the takedown procedure offers a quick way for copyright holders to have their materials taken offline while reducing the risk for internet hosts and service providers – with caveats. We’ll cover the caveats later, but for now we’ll focus on the takedown notice, which notifies the host or ISP that there is infringing material on a website which they host. The takedown notice is addressed to the service provider, not the actual infringer, and will be forwarded by the service provider to its customer.

The takedown notice must include 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.

This is pretty easy – anything which you intend to be a signature can be your signature. A scan will do, your name typed and preceded by /s/, just your name, or, in the right circumstances, even an “X” will do. As long as it can be construed as a signature it will probably suffice.

(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.

This is the stuff you want removed, typically in the form of a URL leading directly to the infringing material. If there are too many to list, you can reduce it down to a reasonable sized list, but remember the host should be able to find those materials reasonably quickly – you can’t just point to the home page and say “it’s here” unless the entire home page is a copy of your materials. If the infringement is only a small portion of the page or site, consider providing a pdf with the infringing materials circled or highlighted.
Don’t list your own copyrighted materials here, or you risk having them removed. That’s like what my brother did a few years back when he called the city to have a car towed and inadvertently reported his own car, then in an effort to correct it he reported his car again. He then had to move his car. Don’t do it.

(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.

In most cases, this is where you’ll provide links which show your materials in their original location. Again, a host should be able to look at the pages listed under (ii) then look at the list under (iii) and, without too much effort, see what is allegedly infringing. Use a list of URLs where needed, and an attachment showing the exact location of the original photo or text can be helpful where appropriate.
If your content isn’t online, provide enough information for the host to verify in some way that the materials are yours. I’ve seen links to books on Amazon, citations for published papers, and even scans of documents attached to DMCA notices – as long as the host has something credible to rely on it should suffice, and if it doesn’t they’ll likely let you know so you can supplement the notice with additional materials.

(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.

This should be pretty self-evident, but it should really be more than just a reply-to address in an e-mailed complaint. A DMCA notice with contact information which is intended to avoid disclosing the identity of the complainant may be ignored by some service providers.

(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.

These two requirements seem to confuse people, but in reality it’s easy (and required). You simply have to parrot these two lines in your notice, e.g. “I have a good faith belief …” and “The information in this notification …” Whether you think it makes sense or not, these two statements are required, and leaving them out (or creatively rewriting them) can render the notice ineffective.

You can find a sample letter at EPIC and a host of other sites, or you can look through Lumen’s database of DMCA notices for thousands of examples, good and bad.

Some people (often attorneys) feel the need to lard up their notices with everything from copyright registration information to all sorts of creative reservations of rights or nasty threats. None of that is necessary, and much of it is superfluous. If the notice is proper, in order to benefit from the immunity provisions, an ISP has to either remove the materials or ask for clarification (if certain elements are present but the notice is not entirely in compliance with the law). If the notice is non-compliant it can, and probably will, be ignored.