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: [Read more…]