With the rise of digital media, business owners find themselves having to understand more and more copyright and intellectual property law in order to protect their own assets. One of the foremost tools to protect copyrights is known as the Digital Millennium Copyright Act (DMCA). The DMCA is a United States copyright law that provides a way for individuals and businesses that find their copyrighted work being infringed upon to take action. However, there are certain considerations that must be taken into account before a DMCA notice can be sent and properly acted upon. Here are the top 5 things to consider with respect to a DMCA notice:

1. Understanding the DMCA

The process of sending a DMCA notice is complex and for business owners and individuals to protect their copyrights properly, they must first understand the DMCA and the various provisions it outlines. This can be especially difficult given the highly technical language in which it is written. Attorneys that specialize in intellectual property can assist business owners and individuals in properly understanding the DMCA before undertaking any action.

2. Establishing Copyright

Under the DMCA, it is necessary to demonstrate that the work being infringed upon is in fact a copyrightable work. A work is considered copyrightable if it is an original work and was created by the copyright holder. In order to adequately establish copyright, it is important to keep detailed records of the creation of the work. A thorough copyright registration process can also establish copyright.

3. Securing Rights to the Work

In addition to establishing that a work is copyrightable, it must also be determined if the party sending the DMCA notice is actually the one with the right to send that notice. If the rights to the work is shared with another party, then it is critical that that party also agrees to we go along with the DMCA process. This requires the parties to have a thorough understanding of the original agreement in order to properly secure the right to send a DMCA notice.

4. Knowing How to Send the Notice

In addition to knowing which party has the right to send a DMCA notice, it is also important to know how to create and send the notice. Sending the notice to an inappropriate party can lead to additional delays in getting the requested action. Understanding copyright ownership and filing a complete and proper notice in the best way possible is the key to effectively enforcing the DMCA.

5. Being Prepared for a Legal Challenge

Lastly, the party sending the DMCA must be prepared to take any and all necessary steps to protect its copyrights should the infringer contest the notice. Any successful DMCA notice must be accompanied by a threat of legal action so that the infringer is aware that the copyright holder is serious and willing to take legal action if necessary. Business owners should always consult a lawyer if they intend to pursue legal action after receiving a DMCA notice.

It is critical that business owners understand the implications of sending a DMCA notice and the various things they should consider before sending one out. It is also important to be aware of local laws with regards to transmission and DMCA notices. In New York, the copyright laws are in line with the DMCA and it is important for business owners to find an experienced attorney that understands the local regulations and can help them navigate the DMCA process. At UpCounsel, we provide access to business lawyers with years of experience in providing quality, cost-effective legal services to businesses of all sizes.


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