DMCA Claim: Everything You Need to Know
A DMCA claim, also called a DMCA Takedown Notice, is a complaint made if someone suspects a website of copyright infringement. 11 min read
What Is a DMCA Claim?
A DMCA claim, also called a DMCA Takedown Notice, is a complaint made if someone suspects a website of copyright infringement. The Digital Millennium Copyright Act (DMCA) is a set of laws that exist to protect copyrighted content on all digital mediums.
Enacted in 1998, the DMCA implemented treaties signed in 1996 by the World Intellectual Property Organization (WIPO) Geneva Convention. The treaties address issues that affect photographers directly.
The DMCA says that, while an Internet Service Provider (ISP) is not liable for displaying information that infringes a copyright, the ISP needs to remove the material from their users' websites if they receive proper notice.
A DMCA claim requires that hosting providers, upon receipt of an infringement claim, remove or disable access to any websites that are potentially infringing.
Your copyright does not have to be registered with the U.S. Copyright Office to take advantage of this DMCA regulation.
How to File a DMCA Claim
If you discover that someone is using your copyrighted works on their website, you should immediately file a valid DMCA Claim. It's important that your DMCA complaint has all the necessary information and is written properly. Otherwise, it is invalid and a website can simply disregard your DMCA violation report.
The notice should have:
- A physical or electronic signature of the person that owns the copyright or a person authorized to act on behalf of the owner.
- Identification of the work or works that you are claiming infringement upon and a list of all the works.
- The location and identification of the material that you want removed.
- The address, telephone number, and email address where you can be contacted.
- A statement that says you have a good faith belief that use of the material in the way it is being used has not been authorized by the copyright owner, its agent, or the law.
- A statement that the information in your notice is correct and that you are either the owner of the copyright or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Before you send a DMCA Takedown Notice, you need to make sure that:
1. You own the copyright or have the right to assert infringement of a copyright you license.
2. The supposed infringement is not covered by laws such as Fair Use or free speech.
3. The content is capable of being infringed online and is in a digital form such as:
- Text: TXT, RTF, DOC, DOCx, PDF, PPT, PAGES
- Images, pictures, and photos: BMP, EPS, SVG, JPG, JPEG, GIF, PNG, PSD, RAW, TIFF
- Video: MPG, AVI, RM, MOV, Quicktime, Windows Media Player, RealPlayer
- Music and audio: AIF, AU, MP3, MP4, MID, WAV
- Images found on: Facebook, Tumblr, Pinterest, Flickr, Instagram
Once you have ensured that the copyright is actually being infringed upon and you have all the information you need to fill out your DMCA violation report correctly, there are precise steps that then need to be followed in order to correctly file a DMCA Takedown Notice.
1. Locate the Right Person
If you find your content on another website, it can be somewhat difficult to find out who the hosting company of that website is. If you are sending the notice to an Internet Service Provider (ISP), there's usually an email or form provided on their site.
You might need to hunt. There is no consistent location. Some popular locations are under Copyright or in their Terms and Conditions.
If the offending page is on a hosted a blog like LiveJournal, Wordpress, or Blogger, finding the right ISP is should be easy.
2. Look for Online DMCA Takedown Forms
Some websites have specific online forms for DMCA Takedown requests. It is best to use this form as your first point of contact since it is probably going to give you a quicker response. Most large websites, especially search engines, use forms to send issues to specific departments to deal with them.
3. Send Notice to DMCA Agent
If there is no online form provided, you have to send your notice to the designated DMCA agent in exactly the way that they request. Some agents do not want requests by email and instead prefer to have them faxed or sent by registered mail.
Sample DMCA Takedown Notice
To Whom It May Concern,
The following information is to assert my rights and request a removal of allegedly infringing web content under the Digital Millennium Copyright Act (DMCA). I am contacting you as the agent for the site where the infringing content currently appears. This is a Notice of Infringement as authorized in §512(c) of the U.S. Copyright Law.
I am the copyright owner of the content, and the following information is true and accurate.
1. The original work, for which I own the copyright, appears, with my permission, at the following locations online:
- List the URLs where your original and work appears and is authorized.
2. I have attached copies of my original copyright work to help with your evaluation and decision-making process.
3. The allegedly infringing work can be found in the following locations online:
- List the URLs where the infringing work is currently located
4. My contact details are as follows:
- List all contact details including your address, preferred phone number, and email address.
5. The contact details of the alleged infringer are:
- List any contact details you were able to find on the U.S. Copyright Office website or Who Is.
6. I have a good faith belief that the use of the above copyrighted works that appears on the website for which you are the DMCA agent is not authorized by the copyright owner, its agent, or by law.
I declare, under penalty of perjury, that this notice is true and correct and that I am the copyright owner entitled to exclusive rights which I believe are being infringed.
Signed this ________ day of ___________, 20_____ in (Your City, State, Country).
(Your Signature or eSignature)
— — — — — — — — — — — — — — —
Responding to a DMCA Takedown Notice of Your Content
If your hosting service or other ISP receives a DMCA Takedown notice regarding your content, it usually responds by removing the material in question. It will do this without judging whether your content is actually infringing or not.
The DMCA notice-and-takedown procedures offer you protection from wrongful claims of copyright infringement. The DMCA requires service providers to tell you immediately when they remove any of your content due to a takedown notice. You then have the right to submit a counter-notice asking that the material be put back up.
There is no time limit for submitting a counter-notice, but you should reply as soon as you can. If you send a counter-notice, your service provider must then replace the disputed content unless the first complaining party sues you within fourteen business days of sending your counter-notice.
If you are not a U.S. resident, you need to consent to the jurisdiction of a U.S. court in your counter-notice. If you never go to the U.S. and you don't have any assets there, then there may not be a case because a plaintiff would not be able to enforce a judgment against you in the U.S.
If you can't show sufficient assets in the U.S., a plaintiff may be able to convince a court in your country to enforce a foreign judgment. These proceedings don't usually give you an opportunity to make your case. If you are a non-U.S. resident and you send a counter-notice, you give up a powerful argument that you would otherwise have, so it is not recommended for non-U.S. residents to send a counter-notice unless they are willing to fight a copyright infringement claim in the U.S.
Before sending a counter-notice, be sure to carefully consider whether you are infringing on the other party's copyright. The counter-notice requires that you have a good faith belief that your material was wrongly taken down. If you send a counter-notice and the complaining party has a good case for infringement, you could trigger a lawsuit.
If you are not ready to stand up to a lawsuit for the use of the copyright owner's work, you should not send a counter-notice.
To be effective, your counter-notice needs to have:
- Your physical or electronic signature
- Your name, address, and contact number
- An identification of the alleged infringed material and its location before it was taken down
- A statement, under penalty of perjury, that the material was taken down by mistake or misidentification
- Your consent to the jurisdiction of a federal court in the district that you live in (if you are in the U.S.), or to the jurisdiction of a federal court where your service provider is located (if you are not in the U.S.)
- Your consent to accept service of process from the person who submitted the first DMCA takedown notice
A host then passes along the counter-notice to the person who filed the original notice. The works stay offline for 10 business days, after which, if no more action has been taken by the filer, the works can be restored.
The copyright holder can petition the court for an injunction to prevent the restoration of the original works, but if it is not obtained within the time allotted, the works are restored to the site.
How to Protect Against Copyright Claims
Section 512 of the DMCA has provisions for online service providers called "safe harbors." Safe harbor provisions can shield you from liability for any copyright infringements made by your site's users, as long as you have an effective "notice-and-takedown" procedure.
If you publish the creative work of others online without getting their permission, you could be exposing yourself to legal liability. Fortunately, you can protect yourself from copyright infringement claims as long as you set up effective "notice-and-takedown" procedures. You need to make sure that if you receive notices of infringement, you act quickly to remove the content and ensure you never knowingly publish copyright materials.
Another safe-harbor provision states that an online service provider will not be held liable for money damages "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link."
This basically means that if you link to websites that contain infringed copyright, but you didn't know that they were infringing, then you are not liable for copyright infringement.
Another safe harbor provision covers material iposted to a blog or website by a user in your comment section or on a forum thread. This could be a photograph, film clip, or audio file.
This safe-harbor provision states that, as the administrator of a website, you are not liable for money damages for infringing content posted "at the direction of a user," as long as you:
- Do not have actual knowledge that there is infringing content on your servers.
- Do not receive any financial benefit from the infringing activity if you have the ability to control such activity.
- You act quickly to remove the infringing material once you become aware that the material is infringing copyright.
Requirements for Safe Harbor Protection
1. Designate a Copyright Agent to Receive Your DMCA Takedown Notices
You have to designate an agent. You can be the agent or you can choose someone you trust. This is an official procedure, and you need to file an Interim Designation with the United States Copyright Office and pay a $105 filing fee.
2. Communicate Your Copyright Infringement Policy to Users
In order to qualify for safe harbor protections, you need to publish a statement on your website to notify all site users of your DMCA agent's contact information as well as your policies about copyright infringement.
The notice can be a part of the website's Terms and Condition or elsewhere, but it has to be prominently displayed. It only has to be a short statement that explains how you respond to notices of copyright infringement. If you have a specific way that you want DMCA claims to be formatted and how you want to receive them, you should be clear about it in this statement.
Not All Cease-and-Desist Letters Are DMCA Takedown Notices
The DMCA safe-harbor provisions only apply to copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims for uses of trade secrets.
This means that you cannot shield yourself from liability by simply removing those other types of content once you've published them on the internet.
Websites get cease-and-desist letters based on non-copyright claims quite often. Do not assume that every letter you get is a DMCA takedown notice. Be sure to read the letter carefully and think about your next steps based on the information being requested.
Frequently Asked Questions
- Are embedded videos considered copyright infringement?
It is a common occurrence to embed videos from other online sources into articles or blog posts. If you are simply embedding the video, it is the same as adding a link. There is no copy of the video being stored on your server. That means you can likely claim safe harbor if you are later told that the video is a copyright infringement.
- What can copyright holders do after a counter-notice has been filed?
The copyright holder can seek an injunction in court to stop the work being restored. These types of injunctions usually involved a lot of time and money. The most practical response to a counter-notice is to file a lawsuit and go through litigation. Lawsuits are not always practical since they can also cost a lot of money. If you plan to continue going forward with your infringement case, be sure to discuss it with an experienced copyright attorney.
- How common are counter-notices?
If your original notice was clear and valid, a counter-notice will be very rare. Most infringers and legitimate internet users aren't interested in spending the energy on learning how to file a counter-notice, nor do they want to take the legal risk in filing one. Most people who receive DMCA takedowns don't know that they can even file a counter-notice and most hosts don't do a very good job of explaining the process.
- Should I file a counter-notice?
If you receive a DMCA notice and you feel that it was either an accident or it was done maliciously, you will probably want to file a counter-notice. Before doing so, be sure to consult with an attorney so that you do not get yourself into legal trouble. One reason you may want to file a counter-notice is that service providers often ban repeat DMCA infringers from using their services. If you feel you have received a strike against you unfairly, you should do something about it before being wrongly banned from using your website.
- What if I publish a quote or parody from a copyrighted work as part of a review or analysis? Can the copyright holder issue a takedown notice to my hosting company?
An unhappy copyright owner can issue a takedown notice if they are unhappy with you using parts of their work without their permission. If this goes to court it gets complicated and is analyzed on a case-by-case basis. Your service provider isn't responsible for doing the research on whether something is "fair use." If they receive a notice, they are obligated to remove the content and it is then up to you to decide if you want to issue a counter notice.
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