DMCA Complaint: Everything You Need to Know
A DMCA complaint is in regards to the DMCA, or the Digital Millennium Copyright Act, a digital rights law enacted in 1998.5 min read
2. What to Do if You See Your Image on the Web
3. A Guide to the DMCA Takedown Notice
4. Frequently Asked Questions
Updated July 23, 2020:
What is a DMCA Complaint?
A DMCA complaint is in regards to the DMCA, or the Digital Millennium Copyright Act, a digital rights law enacted in 1998 that indicates that an Internet Service Provider (ISP), after receiving notice, must remove any materials from users’ websites that appear to represent copyright infringement.
What to Do if You See Your Image on the Web
If you find that one of your photos is being used, you can contact the ISP or website host providing notification that it is using your photo, request that it be removed immediately, and also further specify that you will report the infringement if it isn’t taken down. Should you need to formalize this request in writing, you can fill out what’s called a DMCA takedown notice and send it to the ISP agent, whose name/address will be made available to you.
The notification must include the following:
- The notification must be in writing
- Signature by you or your agent
- The type of work that was infringed
- The material infringing your work
- Your contact information, including telephone number and address
- The copyright holder must indicate that the takedown notice is being issued in good faith, and that all information identified within such notice is truthful.
A Guide to the DMCA Takedown Notice
The DMCA complaint is also referred to as a DMCA takedown notice. Once you, the copyright holder, learn of the violation made, this notice is issued to the service that hosts the website. In additional to issuing a takedown notice to an ISP or website host, it can also be issued to a search engine itself. Note that there is no specific form to be utilized when issuing such a notice, but the copyright holder should be mindful of the aforementioned requirements when creating a notice.
Frequently Asked Questions
It is common for a copyright holder to have more questions than answers when finding an unauthorized photograph being used online. Check out some of the below most frequently asked questions, and should you still require additional information, you can contact a qualified attorney who can assist you in the process.
- Does the DMCA affect webmasters?
Website administrators who are not engaged in copyright infringement are generally protected by the DMCA, particularly if they host content for other users, e.g., YouTube. However, website administrators who choose not to remove such material after being asked to do so may, in fact, be subject to criminal and/or civil penalties. Furthermore, even if a website administrator unknowingly posts infringed material, it may, in fact, be liable due to negligence.
- Is the DMCA system up-to-date?
No. The DMCA system tends to be outdated. While all ISPs, online hosts, and other businesses that post materials online at the direction of other users’ should designate a DMCA agent, most companies fail to do so due to such high fees associated with it. In addition, most companies simply list contact information directly on their site as opposed to using the DMCA system.
- How can I file?
Anyone can file a takedown notice; you don’t necessarily need the help of anyone else to file the notice. You simply need to identify the necessary terms in writing. However, if you feel more comfortable having an attorney by your side to do the legwork for you, you can find a qualified attorney here.
- Where can I send my notice?
You can send your notice to the contact identified either on the company’s website or on the DMCA website. However, if you are unable to find the contact on either of these forums, you can look it up in the U.S. Copyright Office’s database.
- Is there any such thing as a paid DMCA notice service?
Yes. As mentioned above, you can either hire an attorney or another third party DMCA service to send the notice on your behalf. For example, if you own a large company that publishes photographs in different settings, and you believe that your photos were stolen, you might have the necessary means to hire a third party to create a takedown notice and issue such a notice to the third party that is engaging in copyright infringement.
However, if you own a small company or don’t have the funds to pay someone else, then you can easily file a takedown notice yourself.
- Will a DMCA complaint be complied with outside of the U.S.?
This really depends on two factors,  where you are located and  where the web administrator is located.
If you’re inside the U.S. and the site that stole your content is hosted in any of the WIPO (World Intellectual Property Organizations) member countries, then you can issue a takedown notice, and the host is expected to comply with the request. This also holds true if you are outside of the U.S. and requesting that a host located within the U.S. remove your content. However, keep in mind that if the host doesn’t take down the content, any legal measures taken may be a bit more complex due to the international aspect of the case.
If the website administrator of the site that that stole your content is located in a non-WIPO member country, then it might be more difficult having it removed. In this case, you should contact an attorney who can be of further assistance.
- I just received a DMCA notice to remove content. What now?
Don’t make any assumptions. First, read the notice. The notice itself is basically indicating that you engaged in copyright infringement by posting the specific content onto your website. After you read the notice, look on your site to identify where the content is, and how it is being used. Did you, in fact, use the content? If so, you should remove it immediately.
However, if you receive the notice, and don’t believe that you stole the content, you’ll want to confirm ownership of it. If you believe that you are the true owner of the content, then you should reach out to the complainant yourself to help better understand the problem. If you’re on the receiving end of additional accusations, then you can file what is called a counter-notice.
The counter-notice must include the following:
- The counter-notice must be in writing
- It must contain your signature
- It must identify the specific content that was removed
- It must include a statement of good faith
- Include your contact information, including address/phone number
- Include a statement indicating that you consent to the jurisdiction of the Federal District Court for your specific judicial district
After the complainant receives the counter-notice, he or she has the following two options:
- Withdrawing the notice
- Filing a copyright lawsuit
Should the complainant file a copyright lawsuit, you’ll want to have your attorney involved. I
f you need help obtaining filing a DMCA takedown notice, or have any additional questions regarding the process, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.