The Internet and all that it encompasses is full of content, some original, some considered “fair use” and some that violates copyright. So, when someone feels that their work is being infringed on a website or social media, what can they do to get the content removed?
Unfortunately, copyright issues on the Internet are much bigger issues today than ever before, especially with so many people ripping off content on social media. Because of this, there are specific laws that websites and platforms must abide by. Today, we are going to dive into the DMCA and how you can use it to get your stolen work removed from websites.
1. What does DMCA stand for?
DMCA stands for the Digital Millennium Copyright Act and was enacted in 1998 as an amendment to the United States Copyright Act to implement two international treaties by WIPO (World Intellectual Property Organization) governing intellectual property rights.
2. What does DMCA do?
In short, the DMCA may enable a victim of copyright infringement to remove the infringing content by sending a DMCA notice to the third-party website or Internet service provider displaying the content. This frequently results in the third-party website or Internet service provider taking down the content.
3. What Copyrighted material does the DMCA cover?
The DMCA covers copyrighted material that could be infringed upon on the Internet, such as the following:
- Written words like articles, books, lyrics, poetry, etc.
- Audio files
- Artwork, photos and other images
- Pictures or videos that you’ve posted on your social media accounts
4. What is a DMCA Notice?
A DMCA notice is a written demand that informs an Internet service provider, web host, search engine, or company that they are hosting content that infringes on a copyright. The service provider is exempted from liability for infringement, if and only if, the service provider complies with the steps in the DMCA rules. Upon receiving a DMCA take down notice, in order to avoid liability under the DMCA, the service provider must take down the content, and inform the “subscriber” (the poster of the content). This happens regardless of whether the service provider believes that the content may be original. However, the subscriber can then send a “counter notice” to contest your take down. (We discuss this further below)
5. What is a Service Provider?
A “service provider” is either an Internet service provider such as Comcast or a website owner like Google who owns YouTube, a website host like GoDaddy or any other type of online site operator, including social media platforms like Twitter, Facebook, etc. If you own or operate a website, you will also be considered a “service provider” under the DMCA.
6. What are the elements necessary to include in a DMCA takedown notice?
There are certain elements you need to make sure you include in a DMCA takedown notice. If you fail to include the necessary elements, the service provider may refuse to remove the material. Below is a list of the elements you need to include:
- Signature: This seems obvious, but you’d be surprised. The signature in the DMCA takedown notice should be from the owner of the copyright or the person authorized to act on behalf of the owner. This could be the owner’s DMCA agent, which we discuss further below. It doesn’t matter if the signature is physical or electronic, but it should state below the signature whether it is from the copyright owner or the agent of the owner.
- Identification of the work infringed: It’s important that the DMCA takedown notice identifies the copyrighted work, or the work infringed. In the case that multiple copyrighted works are being infringed on one single site or platform, it isn’t necessary to identify every single work. Instead, the notice sender can use a representative list. Identify the work by title or provide a link to a website or other location where the work is legally residing.
- Infringing activity and location: Clearly identify how the work is being infringed upon and provide information that will allow the reader to locate it on the website, like a URL.
- Contact Information: Make sure to include the contact information of the person sending the DMCA takedown notice. An address, email address, and/or telephone number is best.
- Good Faith Belief: Include a statement addressing good faith belief, meaning that the notice sender believes that the material mentioned is not authorized by the copyright owner, its agent or the law.
- Accuracy of your statements: Include a statement affirming under penalty of perjury that the information in the notice is accurate and that the notice sender is authorized to act on behalf of the copyright owner. It’s important to realize that providing false information and making a false claim is punishable under federal law, and those making false DMCA takedown notices can be sued and held civilly liable. DMCA takedown notices can be sued and held civilly liable.
7. Changes to DMCA in 2016:
“In December 2016, the Copyright Office issued a final rule governing the designation of agents to receive notifications of claimed infringement under the Digital Millennium Copyright Act (“DMCA”).”
What does this mean? It means that certain service providers need to designate an agent to receive notifications from people claiming infringement.
8. Who must designate a DMCA agent?
Any service provider (within the meaning of 17 U.S.C. 512(k)(1)) seeking the safe harbor protections of section 512. DMCA safe harbor protections were created to protect service providers from being liable for copyright infringement in content posted to their sites by other users. However, in order to receive these protections, they must agree to act in good faith to take down infringing content upon notification. The change to DMCA in 2016 means that those websites need to designate an agent to receive notification of claims of copyright violation.
9. Who may serve as a designated agent?
An individual, a specific position or title held by an individual (“copyright manager”), a specific department within the service provider’s organization or within a third-party entity, or a third-party entity in general, like “Smith Takedown Service” for example.
10. How do I designate a DMCA agent with the copyright office?
Step-by-step instructions provided by the copyright office can be found here.
11. Do I need to register my copyright before I can send a DMCA Notice?
No, you can send a DMCA takedown notice regarding unregistered copyrights in order to receive protection for your material. However, a registration is required if you were to file a lawsuit. In the end, is it better to have a registered copyright than to not, but it is not required for a DMCA takedown notice.
12. How to send a DMCA takedown notice to a website
13. How to send a DMCA to YouTube
If you have material being infringed upon on YouTube, you can choose to either submit a copyright takedown notice through their webform or send in a DMCA takedown notice yourself, through your attorney or through a DMCA agent. However, it is important to consider fair use when evaluating whether an unauthorized use of a copyrighted video, logo or image is an infringement.
14. How to send a DMCA to Twitter
Unlike YouTube, Twitter does not have a webform to submit a copyright takedown. However, they do state in their rules and policies that they respond to copyright complaints submitted under DMCA. In fact, they have a ticket system specifically for DMCA takedowns that you can submit yours to. However, it is important to consider Twitter’s fair use policy when evaluating whether an unauthorized use of copyrighted material is an infringement.
15. How to send a DMCA to Facebook and Instagram
Instagram and its parent company, Facebook, have an online form to submit DMCA copyright infringement claims. They claim that it is the fastest method to submit a DMCA takedown notice. However, they also provide the contact information for their designated DMCA takedown agent, found here. If you choose not to use their online form, keep in mind that you need to include a complete copyright claim.
16. How to send a DMCA to TikTok
TikTok has a form you can use to report your copyright infringement claim. They do require you provide the same elements you would in DMCA takedown notice that we discussed earlier in this article. You can also choose to email or mail a DMCA takedown notice to TikTok using the contact information listed here.
17. How to send a DMCA to LinkedIn
LinkedIn has a form where you can report copyright infringement. LinkedIn also provides information for its designated DMCA notice agent. If you choose to submit a written DMCA notice, you can submit it to their copyright agent here.
18. How do you respond to a DMCA takedown notice?
If an ISP (Internet Service Provider) receives a DMCA takedown notice, they will remove the content in question automatically without determining whether the content is truly infringing (this is so they avoid liability under the DMCA). Once they take down the material, the ISP will notify the individual user who maintains the website, blog, social media account or YouTube account about the notice, and why the material was removed. If the individual user believes that the material taken down does not violate copyright, they have the right to file a counter notice.
There’s no time limit on when the DMCA counter notice must be sent, but it should be sent as quickly as possible. Once the service provider receives the counter notice, they have a legal obligation to put the content back up within 14 days of receiving the DMCA counter notice, unless the subscriber files an infringement lawsuit before the lapse of the 14 days. Never send a bogus, unsubstantiated DMCA takedown notice, because you can be sued for damages for doing so. See 17 U.S.C. § 512(f).
Here’s the actual language of the DMCA, under 17 U.S.C. § 512(g)(2):
(2) Exception.—Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider—
(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.
(3) Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
(4) Limitation on other liability. —
A service provider’s compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C).
Remember, if you choose to file a counter notice in order to get the content put back up, you should do so in a timely manner. Once a counter notice is filed, the ISP is required to replace the disputed content UNLESS the complaining party files a lawsuit within 14 business days of the counter notice being sent.
NOTE: Again, the ISP may replace the disputed material after 10 business days if the complaining party has not filed a lawsuit. However, it is required to replace it within 14 business days.
19. Think carefully before filing a counter notice to a DMCA takedown notice
If you choose to file a counter notice, you need to consider carefully whether you really are infringing copyright. This is important for two reasons:
- Perjury Penalty: Counter notice requires you to state, under penalty of perjury, that you truly believe (in good faith) that the material was wrongfully removed.
- You May Trigger a Lawsuit: If the complaining party has a solid infringement claim, they may choose to sue you.
20. There are crucial elements you need to include in a counter notice. They are as follows:
- Your physical signature or your electronic signature
- Your contact information: name, phone number, and address
- Identification of the content in question and its location before it was removed
- A statement under penalty of perjury that the material was removed by mistake or misidentification
- If you are in the U.S., your consent to the jurisdiction of a federal court in the district where you live and if you are outside the U.S., your consent to the jurisdiction of a federal court in the district where your service provider is located
- Your consent to accept service of process from the complaining party
Speak with an Attorney Well-Versed in Online Copyright Matters
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