Copyright laws and the Internet seem almost at odds. After all, how can anyone monitor the over half a billion (yes, billion) websites that exist? Moreover, if your original work does end up on another’s website, how do you file suit? Then again, if someone sends you a DMCA Takedown Notice, what the heck is it and is it binding? 

The last two questions can be answered by explaining the function of a DMCA Takedown Notice. The Digital Millennium Copyright ACT (DMCA) stems primarily from the World Intellectual Property Organization Copyright Treaty and was enacted so that Web hosts could not be held liable for infringement that took place on their service (as long as they completed the necessary elements). For example, if someone illegally copies a movie then uploads it to YouTube, YouTube will not be held liable for this breach in copyright law as long as they had no knowledge of the infringement, lacked the ability to control it, did not encourage it, did not profit from it, and worked quickly to remove the posting after receiving proper notification.

Now that probably doesn’t apply to you, but that is the first function of the DMCA. The second part involves the Takedown Notice. With this online notification, copyright holders and their representatives can demand removal of allegedly infringing content. This notice contains the following elements:

1. Authorization for a representative to act on behalf of the owner of an exclusive right that is allegedly infringed upon.

2. Identification of the copyrighted work claimed to have been infringed upon or a list of such works (if there is more than one) at that site.

3. Identification of the material that is claimed to be illegally used and the information to direct the service provider to locate the material.

4. Contact information of the person or party filing the complaint (such as an address, telephone number, or e-mail address) at which the complaining party may be contacted.

5. A statement that the complaining party has a good faith belief that use of the material in question is not authorized by the copyright owner, its agent, or the law.

6. 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 upon.

If you’re planning to file a DMCA Takedown Notice, you should first take screenshots of the material that has been illegally used then contact your Internet lawyer to ensure that you follow the procedures carefully. With the help of your attorney you can contact the web host and request that your IP be removed.

If you’ve been served a DMCA Takedown Notice you should request a full copy to see what material is under fire and the web address that it is located under. Next, contact your attorney so he or she can verify if the accusation is real or a mistake. If you are accused erroneously, you should still file a counter-notice because hosts are required to ban and delete accounts of repeat infringers. The last thing you want is for your account to be disabled.

Regardless of whether you are on the giving or receiving side of a takedown notice, you should hire a copyright attorney to represent you. As with any legal notice, this should be taken care of seriously and efficiently.

About the author

Christina Morales

Christina helps provide useful business and legal tips on UpCounsel for our customers and visitors. Having over a decade of writing experience in a variety of industries, she has also been very close to the legal space from a young age with family members who continue to practice business and tax law.

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