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 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.
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.
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.
The DMCA covers copyrighted material that could be infringed upon on the Internet, such as the following:
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 takedown 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.)
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.
There are certain DMCA takedown notice requirements you need to make sure you include in your 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:
“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.
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 the DMCA in 2016 means that those websites need to designate an agent to receive notification of claims of copyright violation.
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.
Step-by-step instructions provided by the copyright office can be found here.
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.
Issuing a DMCA takedown notice to a website can be done by yourself quite easily. However, most intellectual property rights owners seek counsel, because they want to ensure the proper measures are taken if a service provider fails to respond. Most websites have specific DMCA notice policies published on their site. You can typically find these notices where you’d find the site’s Terms of Service or Privacy Policy. You could also look for the contact information for the web host or search engine online. There should be an email address or mailing address where you can send your DMCA takedown notice. You can also hire an experienced DMCA takedown lawyer or a DMCA agent to submit the DMCA takedown notice on your behalf.
If you have material being infringed upon on YouTube, you can choose to either submit a copyright takedown notice through their webform or you can send in a DMCA takedown notice by 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.
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.
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.
TikTok also has a form you can use to report your copyright infringement claim. However, 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.
LinkedIn has a form as well, 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.
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, and how to fight a DMCA takedown 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’re wondering how to avoid DMCA takedown, and 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.
If you choose to file a counter notice, you need to consider carefully whether you really are infringing on a copyright. This is important for two reasons:
If you are in search of one of the best DMCA takedown services, look no further. If you’ve been wanting to file a DMCA takedown order or if you’ve been studying how to avoid DMCA takedowns and want to know how to fight a DMCA takedown, contact RM Warner Law today. We’ve helped countless clients with various digital legalities – both routine and litigation. Get in touch today to begin the conversation.
On the internet, where perception is reality, defamation poses a significant threat to individuals and…
The internet has opened up opportunities for business owners, marketers, influencers, and content creators alike.…
How did Diddy get famous? Sean “Diddy” Combs started out as an ambitious radio station…
These days, the rapid growth of online marketplaces means many entrepreneurs opt to use e-commerce…
Reputation is everything in the business world. A single false statement or malicious rumor can…
Starting an online business can be exciting. As an e-commerce entrepreneur, you are eager to…