This Article adapted for non-commercial, educational use under “fair use” provisions from https://www.copyrighted.com/blog/dmca-guide
What is DMCA?
Digital Millennium Copyright Act (or DMCA) is a US law enacted in 1998 (and amended). The aim of DMCA is to balance the interests of copyright owners and users and address copyright infringement in digital environments.
The DMCA is part of the United States copyright law, therefore is applicable only to the websites hosted in the US. All sites hosted in the US are bound to obey the law. Therefore even if the copyright owner is outside of the US, they can still issue DMCA notice if the hosting website is located in the US.
Nonetheless, most sites hosted in World Intellectual Property Organizations (WIPO) countries abide by the Digital Rights Management (DRM) law and entertain DMCA takedown notices. At this time there are around 200 countries that have signed the WIPO treaty.
What is a DMCA safe harbor?
“Safe harbor” refers to the provision of DMCA which exempts Online Service Providers (OSP) and other internet intermediaries from direct copyright infringement. There are four safe harbors approved by Congress, for which OSPs have limited to no copyright infringement liability. Following are the permitted safe harbors under DMCA:
Information location tools
Temporary digital network communication
Storing information at user’s direction on system or network
The reason behind creating DMCA safe harbors is to expand internet and to improve the quality and variety of services to be provided on the internet.
What is fair use?
The right to use copyrighted content without permission of the copyright owner in certain conditions is deemed as “Fair Use”. The legally permissible purposes for which the copyrighted content can be used and fall under Fair Use category include:
Fair Use promotes creativity and people using the copyrighted content for the above-mentioned purposes won’t be charged with copyright infringement.
To determine whether there was Fair Use of the copyrighted work or not, consider the following factors:
Nature of the copyrighted work/content
Usage purpose of the copyrighted work; whether it’s of commercial nature or for educational purpose
The amount and substantiality of the portion used by the third person
How the portion used will affect the potential market and its impact on the value of the copyrighted content
What is a DMCA takedown notice?
A DMCA takedown notice is an official notification to the company, search engine, ISP or web host informing them that the material they are hosting or linking to infringes on a copyright.
The company or website at the receiving end of the notice should immediately take down the copyrighted material. If they don’t remove the material in question, then the ISP can forcibly take down the content.
The types of copyrighted material for which you can send a DMCA takedown notice (or DMCA request) includes:
Written text which includes books, articles, poetry, blogs, etc
Pictures that you took and posted on your business’s official social media sites
Artwork, photos, images, paintings, etc
Songs, music or other audio files
The hurdle you may face while issuing a DMCA takedown notice is when the website that hosts the copyrighted content is not located either in the US or another country that follows the DMCA or copyright laws.
Does the work have to be registered before sending DMCA takedown notice?
No, you don’t have to register your work before sending a DMCA takedown request. Content in tangible form becomes your intellectual property as soon as it’s created and you hold the copyright to it and thus can send a DMCA notice.
Most people post photos, videos, or written content on the internet without any registration with the copyright office, but they hold the exclusive rights of the material and can send DMCA notice for any unlawful use of their content.
But if the person who sent a takedown notice receives a counter-notification stating that there was no copyright infringement, then they have to file a lawsuit within 14 days.
Registration is required if you would like to be able to file a copyright infringement lawsuit and claim for monetary damages. Otherwise, DMCA takedown request can be sent for any unregistered material for the sake of its protection.
How to write a DMCA takedown notice?
There is no official template to write a DMCA notice, but there are certain guidelines you should follow before writing a DMCA takedown notice. Take a look at these:
Provide the URL of the website hosting copyrighted content, mention the infringing material and cite any other detail you have.
Cite the URL of the original content, its title, and other details.
Clearly state that you have a good faith belief that your content is infringed upon and you don’t permit usage of your copyrighted content and the information in the notice is correct.
Make a statement under penalty of perjury that all the information you have provided is accurate.
Include your contact information because it’s a legal notice.
Finish it off with your physical or electronic signature.
It’s is very important to provide the necessary details, statements, and disclosures and format them accordingly to ensure the success of your takedown notice.
Where to send a DMCA takedown notice?
DMCA takedown notice can be sent to various sources involved in publishing the infringed material.
Start with the easiest way which is emailing the site’s owner to take down your copyrighted content. Usually, people respond to it to avoid any legal consequences and remove your copyrighted content from their site. You may usually find contact information or contact form on their site.
If the owner refused to do so, you may send a signed DMCA request to their hosting provider. They’ll act upon DMCA notice according to their laws.
If the hosting provider finds your request to be legitimate, it has the authority to either immediately take down the infringing content or disable access to it.
Besides filing a request with the website’s hosting provider, you can also file a DMCA takedown request with Google. After entering the contact information, you have to provide URL of both your original content and of the infringed material. If successful, you will at least disable the infringing web page from getting additional exposure via Google’s search engine. It will also negatively impact their SEO potential and site’s owner will think twice before stealing someone’s content next time.
What is a DMCA counter-notice?
If you did not commit copyright infringement, you can send a counter-notice to the notifier. By filing a counter-notice you are agreeing to “accept service of process” from the notifier. This means you understand that this counter-notice may result in a lawsuit. Complainant who receives a counter-notice must file a lawsuit within 14 days.
The DMCA allows registered copyright owners to file a lawsuit in a federal district court. The federal court has the power to grant injunctions against the defendant to prevent future infringements. The defendant may have to pay actual damages up to $2,500 per violation, or statutory damages up to $25,000. The plaintiff may also recover any profits the defendant made from the infringement which can run to many thousands of dollars. Repeat offenders may face triple damages if they violate the DMCA within three years of a judgment. In one recent case, a photographer’s images were stolen and used on a health science company’s website. The judge awarded the photographer $1.6 million in damages.