The Digital Millennium Copyright Act (“DMCA”) is a U.S. law designed to protect content creators (and Internet Service Providers), and to “maintain a balance between the rights of authors and the larger public interest.”
I could write a book (and people have) describing the DMCA in detail, but the part of the law most relevant to authors – and the topic of today’s post – is the DMCA Takedown Notice.
(Advance apologies for the length of this post, but it takes a little space to describe the process in a useful way.)
Under the DMCA, website hosts and ISPs must promptly investigate and resolve copyright infringement claims, provided the claims are presented in a DMCA-compliant notice (normally called a “DMCA Takedown Notice”). The legal requirements for this notice are established in 17 U.S. Code Section 512 (c)(3). In practical English:
To put an ISP on notice of copyright-infringing material on a hosted website, the person claiming infringement (or his/her representative) must send the ISP a written notice (many ISPs accept these notices in electronic format, and many websites post a DMCA submission form) containing the following information:
- Identification of the infringing material that the owner is asking the ISP to remove (or disable access to), along with enough information for the ISP to locate the material. (Normally, a URL or link to the infringing content on the hosted website.)
- Identification of the copyrighted work the owner claims has been infringed. (If multiple works by one author are involved, the owner can send a single notice that lists all of the works.)
- Sufficient information for the ISP or website to contact the author of the DMCA complaint. (Generally, a physical address, telephone number, and valid email address.)
- A statement that the complaining party (you, if you’re preparing the notice) has a good faith belief that use of the copyrighted material is not authorized by the copyright owner, any agent of the owner (such as a publisher), or the law.
- A statement, made under penalty of perjury, that the information in the notice is accurate and that the complaining party (you, if you’re sending it) is the copyright owner or legally authorized to act on the owner’s behalf.
- The physical or electronic signature of the copyright owner (or an authorized representative, like an attorney, agent, or publisher).
Before you send a DMCA notice to a website or ISP you should:
- Make sure the website doesn’t have permission to post the material. Check your contracts, licenses, and grants of rights (and check with your publisher, if you have one) to make sure the use is actually a copyright infringement. It’s embarrassing to send a DMCA notice and get a response that says, “We have a license.”
- Make sure the use is not “Fair Use.” Generally, offering free access to a copyrighted work, in its entirety, without permission, is copyright infringement – but if the use is only an excerpt, or if you’re not certain about fair use, contact a lawyer before proceeding with a DMCA notice.
- Confirm the proper recipient of the notice. If the website doesn’t include a copyright agent or administrator’s contact information, you can generally send the notice to the website host (the ISP that hosts the website on its servers).
Be aware: a DMCA Notice is only legally operative within the United States, in countries that are signatories to the copyright treaty that prompted the DMCA’s enactment in the United States, and in countries that have enacted laws similar to the DMCA (with similar notice requirements).
And now for the bad news:
Unfortunately, even within the United States, DMCA notices are a lot like locks – they only work with honest people. Since most of the people who steal content are not honest to begin with, many DMCA notices end up being ineffective.
Also, while you can send a DMCA notice anywhere in the world, it doesn’t carry the same legal weight outside the United States, and websites that exist purely to infringe copyrights (by pirating material) will ignore infringement notices (for obvious reasons). Regrettably, neither DMCA notices nor litigation tend to be effective at stopping deliberate infringement.
That said, DMCA notices can be effective with U.S. based websites, especially those that host third-party work on a regular basis.
Finally, here’s a sample DMCA notice, so you see what one actually looks like:
[Notice Address of ISP to whom the notice is sent]
Attention: [ISP Name] Copyright Agent [Agent/ISP Contact address]
This letter is an official DMCA Takedown Notice, intended to provide you with formal notice of copyright infringement and a request to remove infringing material pursuant to Section 512 of the U.S. Copyright Act (17 USC § 512) and any other applicable laws or regulations.
The following copyrighted works (“Works”) are or have been posted on your website without the permission of the author or copyright holder:
[List of works infringed, by title, including publisher and copyright date.]
The Works are or have been posted at the following location(s) on your website:
[URL’s on the relevant website where the infringing work appears.]
The address, telephone number and e-mail contact information of the individual providing this notice are as follows:
[Address, phone, email redacted.]
To the best of my knowledge and good faith belief, that use of the Works on your website is not and has not been authorized by the copyright owner, any agent of the copyright owner, or applicable law. Please remove the Works from the referenced portions of your website immediately.
I hereby declare, under penalty of perjury, that: (a) the information in this notice is complete and accurate to the best of my personal knowledge and belief, (b) I am either the copyright holder or a person legally authorized to act on behalf of the copyright holder, and (c) the physical or electronic signature at the end of this communication is the signature of the copyright owner or person authorized to act on behalf of the copyright owner of the works listed above.
Please contact me immediately if you require additional information.
While not all DMCA notices will be effective (and, regrettably, many will not), knowing how to prepare and use a DMCA Takedown Notice is an important skill for authors to possess, and it can be an effective tool for removing infringing content from the Internet.
And now for the legalese:
DISCLAIMER: The sample DMCA Notice above, and the content of this post, are provided for informational purposes only, and are not provided or intended as legal advice to any person. This article does not create an attorney-client relationship between the author and any person. Use of information appearing at this article is done at the user’s own risk and not at the advice of the author or any other person, and neither the author nor Writer Unboxed have made any representations or warranties about its effectiveness. If you think you need legal advice, or that you have legal claims against any person or entity, consult a lawyer promptly.