Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998.
Its role was to expand the duties of the copyright office by offering copyright protections to materials published online.
Importantly, this act also helps to protect internet service providers from liability when their users illegally use material that falls under copyright law by allowing for a process through which ISPs and websites can safely and quickly remove such material from their domains.
This process is commonly referred to a DMCA takedown.
Further, while the DMCA is a part of US Copyright Law, its use and protections apply to all copyrightable works, even those that aren’t registered with the U.S. Copyright Office
This article will explore the basics what a DMCA takedown is, how you can file one, and what steps to take if you receive a takedown notice.
However, as always, it’s highly recommended that you speak with an attorney before you take any specific actions in your case.
Copyright law is often incredibly complex, so it’s smart to have an experienced attorney walk you through the steps before you send a DMCA takedown.
What is a DMCA Takedown?
Put simply, when an artist or other content creator finds that their work is being used on a website without their permission, they can ask the website or another related party to take that content down.
In this situation, the content creator would send a formal DMCA Takedown request to the website host’s Copyright Agent which asks that the content be removed from the infringing website.
Note, however, that filing a DMCA Takedown is a legal matter, and you should not attempt it without first consulting an attorney.
When and where does the DMCA apply?
The DMCA is relevant to all copyrightable material online, even works that have yet to be registered with the Copyright Office.
As long as you created the content (or if you’re the subject of a video or photo) you can request a takedown as long as you can prove a few facts in your Takedown notice.
How Do I File a DMCA Takedown?
Your first step should always be to speak with an lawyer, as only an attorney who has reviewed the full facts of your case can accurately tell you what your next course of action should be.
However, as noted above, the general process centers on proving a few key facts in your case, specifically that:
- You own the copyright, you are the licensee of the copyright, or you are the primary subject of the work and want it removed;
- The alleged infringement is not covered by an exception such as free speech laws or a legal defense such as Fair Use (reminder, this must be proven in a court process and is not a right); and,
- The content is in a digital format.
Once you’ve ensured that all three of these facts are true you can file a DMCA Takedown request by following two short steps:
- Locate the correct person or portal with whom you must submit your DMCA Takedown. Generally, they will be listed somewhere in the website’s Terms of Service or other legal pages. If you cannot find the DMCA agent for the website in question, search the U.S. Copyright Office list of DMCA agents. A lawyer can also help you figure out who to contact.
- If the ISP, search engine, social media platform, or website has an online form specifically for DMCA Takedown requests, it’s often better to use this form. If they do not have a form, you should draft a Takedown request and send it to the agent you found in the first step.
Once they receive your notice they should remove the content from the infringing site.
What are the conditions for filing?
If you have to submit a DMCA Takedown on your own (i.e. without using an online form) you should speak with an attorney to ensure you meet all of the required conditions for filing.
For example, your notification must:
- Be in writing, both a hardcopy and a digital version;
- Be signed by the copyright owner or agent of the copyright;
- Identify the original work that has been infringed upon (can include providing the URL);
- Identify the material that is infringing on the copyright;
- Include contact information for yourself, so the DMCA agent can reach you;
- Include a statement saying your complaint is in “good faith”;
- Include a statement that the information provided is accurate; and
- Include the statement, “under penalty of perjury you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed,” or something to that effect.
Please note as well that a single DMCA Takedown notice will not remove every instance of your work from the internet.
Instead, you’ll have to submit a new request for each of the different locations where you find your work being used.
What happens after I file a DMCA Takedown?
After you file your Takedown the website owner, host, or ISP will receive a notice from their website hosting company (or, if you’re filing the Takedown directly, from you).
In most cases the infringing website will immediately remove your work from their site.
However, these websites also have the option of filing a counter-notice.
A counter-notice is a response that explains how the website did not infringe on your copyright, such as if they believe the case falls under Fair Use.
If you receive a counter-notice to your Takedown you should immediately contact an attorney, as your case will likely become complicated very quickly.
Safe Harbor Rules: What You Need to Know
In order to protect the expansion and efficiency of the internet, provisions were made within the DMCA to protect Online Service Providers (OSPs) and other internet intermediaries.
These provisions protect these intermediaries from direct copyright infringement in four different categories through limited liability.
- System caching;
- Information location tools;
- Temporary digital network communication; and
- Storing information, at the user’s direction, on systems or networks.
These safe harbors help to expand the internet and improve the quality of services provided by these OSPs.
If you try to file a Takedown notice against a provider in one of these categories, it is not required for them to follow through, since they are protected from direct liability.
What Do I Do if I Receive a DMCA Takedown Notice?
If you receive a Takedown notice for a website you own or manage you have two options.
First, you could simply remove the content and put the whole situation behind you.
Second, you could contact a lawyer and file a counter-notice in an attempt to keep the content on your website.
Keep in mind, however, that there are consequences to not complying with a DMCA Takedown notice.
For example, failure to take down the content could lead to civil penalties such as a lawsuit in a federal district court as well as potential criminal charges in more serious cases (such as if you’re selling “cracked” software or other similar materials).
Also, if you are an ISP that fails to take down the infringing content, then you could become directly liable for any infringing content others may post in the future.
Lastly, keep in mind the general system of copyright infringement through the DMCA. If you file a counter-notice, then the only step the owner has to stop you moving forward would be to file a lawsuit.
What happens if I don’t comply with the notice?
It largely depends on where you posted the content.
For example, if you posted the content on a website that you don’t own or manage the website owner could simply remove it.
This commonly occurs in cases involving Facebook, Youtube, or other large content aggregators.
If you own or manage the infringing website and refuse to comply, your whole website could be taken down by the ISP or hosting company that publishes your website.
Finally, as noted above, the copyright holder could file a civil lawsuit against you if you continue to infringe on their work.
This is especially relevant in cases where you’ve been making money off the infringed work, such as if you’ve been selling prints of artwork you do not own.
You should never file a DMCA Takedown Notice without understanding the legal complications of your actions.
If you find that a website is using your copyrighted work, you should contact an attorney about the best course of action, whether or not you have registered the copyright.
Filing and Receiving a DMCA Takedown Notice are legal matters.
Not complying with a Takedown Notice can have serious complications, from the removal of your whole website to an entire court case.
The DMCA protects your work whether it is registered with the US Copyright Office or not, so you have a right to request that your work be protected, no matter what.
If you are unsure what to do, contact a lawyer and discuss your options.
The US Copyright Office recently filed a report on the efficacy of the DMCA Takedown procedures, and you should know Congress could enact new legislation, so stay tuned and contact a lawyer for any questions.