DMCA Notice: Everything You Need to Know
A DMCA notice informs a company, web host, search engine or internet service provider that they are hosting or linking to material that infringes on a copyright10 min read
2. Background of the DMCA
3. Frequently Asked Questions
4. How Can You Send a DMCA Notice?
5. What if You Receive a DMCA Notice?
6. File Sharing and DMCA Notices
7. DMCA Notices and You
Updated October 5,2020:
What is a DMCA Notice?
A DMCA notice informs a company, web host, search engine, or internet service provider that they are hosting or linking to material that infringes on a copyright. The party that receives the notice should take down the material in question as soon as possible. If the site owner doesn't comply, the ISP can forcibly remove the content.
You can send out a DMCA notice, not just for infringing material, but also for any indices, references, or pointers that lead to infringing material.
DMCA stands for Digital Millennium Copyright Act. A DMCA notice is also known as a DMCA takedown notice or a DMCA request. The DMCA covers any copyrighted material that could be infringed on the internet, including:
- Written words, such as articles, books, poetry, etc.
- Audio files, including music
- Still artwork, including photos and other images
- Pictures that you've posted on your business's social media sites
DMCA notices are not helpful when the company that is hosting the infringing material is not based in a country that respects these notices.
Background of the DMCA
Congress approved the DMCA in 1998, and President Bill Clinton signed it into law. The act came into being in response to the growing problem of peer-to-peer file sharing websites that made it easier for people to illegally access copyrighted movies, music, and more. Lawmakers and media companies worked together to create the DMCA.
In addition to protecting copyright owners, the DMCA also protects internet service providers (ISPs), sometimes called online service providers (OSPs). An ISP, or OSP, is any company that provides online services or network access. As long as these ISPs comply with DMCA notices and make reasonable efforts to stop copyright infringement, they are protected from infringement lawsuits. This protection is valid if ISPs didn't have knowing participation in the infringement and they didn't gain financial benefits from it.
Another perk for ISPs is that if the material in question turns out not to have infringed on a copyright, the ISP's customer — the person who posted the material in question — can't take legal action against the ISP for removing the content.
Since it went into effect, the DMCA has met with a few problems. For example, web hosts and search engines should have a DMCA agent, and this agent should be registered with the US Copyright Office. However, this registration comes with a fee that many companies do not want to pay. Therefore, while DMCA agent information is usually easy to find online, the listings from the Copyright Office are seldom up to date. There are ongoing efforts to cut the fees so the Copyright's Office's listings will be able to keep up.
Frequently Asked Questions
- After you file a DMCA notice, how long will it be before the copyright-infringing work is removed?
This depends on the company that received the notice. Search engines, including Google, may take up to 10 days to remove the content. Web hosts might take a day or less.
- Do file sharing sites respect DMCA notices?
In most cases, yes. Even file sharing sites that are not based in the United States may respect your takedown notice.
- What if you can't figure out where to send the DMCA notice?
If you can't find the contact information for the web host or search engine online, you could attempt to send the notice via snail mail. However, you'll usually be able to find an email address. If you can't figure out what company is hosting a site, try a WHOIS search or a DNS lookup. Another option is to try to find the information for the company's DMCA agent on the Copyright Office's registry of agents.
- Can you get payment from the person who infringed on your material?
When a site owner or web host obeys your DMCA notice, this does not mean that you are going to get reimbursement. If you want to be paid damages, you have to contact a lawyer and discuss your options. Keep in mind that while your material doesn't need to be registered with the Copyright Office for you to use a DMCA, registering makes it more likely that you'll get compensation for infringement if it happens.
How Can You Send a DMCA Notice?
You can send a DMCA notice yourself, or you can hire a DMCA agent to do it for you. If you choose to do it yourself, you must be careful to follow the correct steps. Failing to do so could make your request invalid.
Notes to Keep in Mind
It's not required for you to register a copyright on your work in order for it to receive DMCA protection. However, registering the copyright could make things easier on you if you end up in a legal battle.
You should know what fair use means and make sure that your article or artwork isn't considered fair use material. Fair use is part of copyright law that allows others to use portions of copyrighted material without asking for permission. They may use it for "transformative" purposes, which means that they can use excerpts to criticize, comment on, or parody your work. Also, you can't complain that your work was infringed on if it falls under free speech protections.
Before you issue a DMCA notice, you might first try to contact the owner of the site with the copyrighted material in a friendly way. The owner might not have known that you own the content. They may have found the content on another site where you didn't know your content was posted, and learning about this could lead you to the real guilty party. If your work was infringed on multiple websites, you'll have to issue a DMCA notice for each instance of infringement.
Writing and Sending the DMCA Notice
Make sure you send the notice to the correct party. Most major web hosts and search engines have a page with all the contact information you need. Send the notice to the abuse department or the company's DMCA agent.
While there is no official DMCA notice form for you to use, it does need to follow certain guidelines. It must:
- Point out the infringing material, giving the URL where it is located and any other important information, such as the title of the content.
- Give the location of the original content. Include the URL and the title.
- Include your contact information.
- Say that the notice is in good faith. This means that you have good reason to think that a copyright is being infringed and the content's owner — you — didn't give permission for the content to be posted by someone else.
- Confirm in clear language that all the information in the notice is correct.
- Say that under the penalty of perjury, the person who sent the notice — whether it is you or your agent — has the right to act on behalf of the copyright holder. Perjury is a crime that involves intentionally telling an untruth in a legal setting.
- Contain your signature or your agent's signature, either physical or electronic.
All of that may seem like a lot to remember, but many companies offer their own DMCA forms that you can fill out so you can be sure that you didn't leave out any important information. If there is no online form available, be sure to send your notice in the way that the DMCA agent wants to receive it. This may be via fax, registered mail, or another means.
Hiring an Agent to Issue the Notice
It isn't too difficult to write and send a DMCA notice without help from a third party. However, if you own a lot of content, you'll likely discover that your copyrights are infringed often. It would save you time to hire a DMCA notice service.
All websites hosted in the United States must cooperate with DMCA regulations. Therefore, even if you, as the copyright owner, are outside the US, you can still issue a DMCA notice and expect the company that receives it to comply with your request to take down the material. However, you should still check the copyright laws where you live.
Even if the site isn't hosted in the US, it may still comply with your formal request to take down the material. This is especially so if the site is hosted in a WIPO country. WIPO is an acronym for World Intellectual Property Organizations. WIPO treaties protect copyrighted material in nearly 200 countries.
If the international aspect of DMCA notices makes you nervous, you might wish to hire a DMCA service that has experience dealing with the issue. Hiring a service can also speed up the process of getting the infringing material taken down. If a site, whether it is in the US, a WIPO country, or a non-WIPO country, refuses to comply with your DMCA notice, you should hire a lawyer to find out about your next steps.
DMCA Notice Example
The wording of a DMCA notice isn't as important as its contents, but here is a sample notice to help you write yours. The parenthetical statements shouldn't be included in your letter. They are merely notes for you to consider when you're writing.
My name is John Doe, and I have learned that a website your company hosts is infringing on one of my company's copyrights. (You may also include your company's name and your job title in the introduction.)
An article (or photo, video, or other copyrighted material) was posted on your servers without permission. The original article is at (insert website URL), and the infringing material is at (insert website URL).
I'm sending this notice under Section 512© of the DMCA. Please notify the infringer about this notice and tell them to remove the infringing material immediately. Tell them to stop posting infringing material. The law also requires that you, as the ISP (or search engine), remove or disable access to the infringing content when you receive this notice. (You may also issue a reminder that ISPs enjoy protection from infringement suits under the DMCA, but that protection is in jeopardy if the ISP doesn't comply with the takedown notice.)
I'm sending this notice in good faith, and I have good reason to believe that a copyright my company owns is being infringed. I certify, under the penalty of perjury, that the information in this notice is correct. I have the authority to act on behalf of the person who owns the copyrights in question.
Here is my contact information:
(include physical address, phone number, and email address)
What if You Receive a DMCA Notice?
If you host websites and you receive a DMCA notice, or you manage a website and your ISP passes a notice to you, the first thing you should do is be honest with yourself about whether you stole someone else's copyrighted material. If you did, remove the offending material as quickly as possible.
However, it is unlikely that you intentionally stole the content. If you host multiple websites where people share content, it is impossible for you to watch all the content on them and check for copyright infringements. Alternatively, perhaps you posted the material without a thorough understanding of how copyright works. Maybe you got permission to post the material from someone who didn't own the content. Accept a DMCA notice as a warning and remove the infringing material immediately.
If you are knowingly using copyrighted material, but you are doing so within the boundaries of fair use, you may still receive a DMCA notice. You might be able to sort this out by contacting the person who issued the notice and letting them know more details about how you used the content. Remove the fair use content until you come to an agreement with the copyright owner.
It also happens on occasion that someone who is not the owner or agent of an owner of a piece of content issues a DMCA notice. Yes, this makes the notice invalid, but until you can be sure about who owns the content, remove it from your site.
Because DMCA notices have contact information for the copyright owner and information about the stolen content, it should be simple to investigate the claims on the notice. Inaccuracies about the original content or the stolen content could mean that the person who sent the notice is being dishonest. If you think that the notice was the result of a misunderstanding, contact the person who sent the notice and try to sort things out.
If your attempts to get the DMCA notice sorted out peacefully does not work, you may have to issue a counter notice. This written and signed document should give details about the content that was removed from the site. It will state, under the penalty of perjury, that the material in question did not infringe on any copyrights and was removed from the website as a result of a mistake.
Like a DMCA takedown notice, a counter notice should contain a statement of good faith and your contact information. It must also say that you intend to cooperate with the Federal District Court for the judicial district where you live. The last necessary part of the counter notice is your consent to "accept service of process" from the person who submitted the takedown notice. This means that you understand a lawsuit may result from your counter notice. After you send the counter notice, the ISP for your site will have 14 days to replace the content that was removed.
When the person who issued the takedown notice — the complainant — receives the counter notice, they may either cancel the takedown notice or file a lawsuit. They have 14 days to file a lawsuit from the time you send the counter notice. If you end up facing a lawsuit, be sure you find qualified legal help.
Note that counter notice cases under the DMCA always take place within US jurisdiction. Therefore, even if you live outside the United States, you must agree to have your case handled in the US.
File Sharing and DMCA Notices
In late 2015, a Comcast subscriber received 112 DMCA notices within a 48-hour period because he shared a single torrent. There is a common policy that anyone who receives six or more notices becomes subject to some sort of action by their ISP. This might include bandwidth throttling or similar measures.
The 112 notices that this one user received seem excessive because while the lawsuit said that the Comcast user ignored the notices, this might not have been the case. Comcast may not have given the DMCA notices to its subscriber right away. Even if it did, the notices began to be issued on June 15, and the last notice was sent before noon on June 16. It is possible that the Comcast user responded to the first notice within 24 hours.
The complainant in the case wanted Comcast to reveal the identity of the person who shared the torrent so they could demand money for damages.
This case illustrates, not only the danger of illegally using torrents but also the need for complainants to be reasonable when they issue DMCA notices.
DMCA Notices and You
DMCA notices are a valuable tool for writers, photographers, videographers, and anyone else whose material might be infringed upon on the internet. You can send a DMCA notice yourself or hire an agent to do it for you. If a DMCA notice leads to a lawsuit, you will need a lawyer to walk you through the case. If you need help with a DMCA notice, you can post your question or concern 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.