How To File A DMCA Takedown Notice

Is a DMCA takedown notice always the way to go? One of the most common questions I’m asked has to do with what to do when someone takes content, whether written, images, audio or video. Copyright infringement in the online, digital, and mobile spaces is getting easier and more prolific by the day. As new social platforms pop up, a new medium for “stolen” content is born.

When people find their copyrighted work posted somewhere they didn’t authorize, it’s very personal. Most people want to “do a DMCA”. While that’s definitely one option it’s not always the way to go.

First, let’s define what a DMCA is. DMCA is actually short for Digital Millennium Copyright Act and it is a group of laws that protect copyrighted content on digital mediums. Signed into law in 1998, the DMCA has been the go-to source for many of the copyright infringement issues arising due to the proliferation of digital media. There are many aspects of the law, but the one most people are familiar with is the DMCA Takedown Notice.

The DMCA Takedown Notice provides a mechanism for copyright holders to request an Internet Service Provider (ISP), search engine, host or other type of site-owner/manager to remove material that is infringing their copyright. Unlike other aspects of copyright laws, the DMCA Takedown process does not require you to have a registered copyright. That’s very important to know, because some people may say you do. Before you send a DMCA Takedown Notice you need to establish a few things:

(1) You own the copyright or have the right to assert infringement of a copyright you license. If you do not own the copyright or have a legal right to assert a claim of copyright infringement, you’re wasting your time.

(2) The alleged infringement is not covered by an exception such as Fair Use or free speech laws. While you don’t have to know every aspect of Fair Use exceptions, you do have to have a “good faith” belief that the alleged infringing use is not covered by any law which would permit its use.

(3) The content is capable of being infringed online. That mean the work must be something in digital form. Here are some examples:

• Text (TXT, RTF, DOC, DOCx, PDF, PPT, PAGES, etc.)
• Images, pictures & photos (BMP, EPS, SVG, JPG, JPEG, GIF, PNG, PSD, RAW, TIFF, etc.)
• Video (MPG, AVI, RM, MOV, Quicktime, Windows Media Player, RealPlayer)
• Music & audio (AIF, AU, MP3, MP4, MID, WAV, etc. )
• Images found on Facebook, Tumblr, Pinterest, Flickr

Once you’ve determined these three things, and you are sure you want to file the DMCA Takedown Notice, there are very exacting provisions of the law you must comply with or the receiving agent may ignore your request. Here are the steps to use when filing a DMCA Takedown Notice.

1. Locate the correct person. If you find your content on another website it may not be common knowledge who their hosting company is. You can use Domain Tools to help you find the information. If you are sending a takedown notice to an ISP there is often an email or form provided on their site. You may need to hunt for it as there is no consistent location. Some put it under Copyright, others have it in their Terms and Conditions. If you can not find the DMCA agent contact on the website, search the US Copyright Office list of DMCA agents. While the information should be current, it may not be due to the organization not updating their information with the US Copyright Office.

2. If the ISP, search engine, social media platform, or website has an online form specifically for DMCA Takedown requests it is often best to use the form as your initial point of contact since it is likely going to yield a more timely response. That is not always the case, but many large provider (especially search engines) use forms to direct specific issues to different departments. For example, one large search engine has different departments that handle requests related to images and video.

3. If an online form is not provided, you will need to send your notice to the designated DMCA agent in the manner they request. Keep in mind that while you think email should be acceptable, if the DMCA agent requests notices by fax (or in some cases registered mail) you MUST submit your request how they want it. Never mind how stupid you may think it is, the DMCA agent chooses the method(s) they want to accept.

4. If you are not using an online form, your letter will need to contain some very specific information. The Digital Millennium Copyright Act sets forth the information that must be provided in a DMCA takedown notice, not the ISP, search engine, website, social media platform, or DMCA takedown agent.

Often you will need to send this same information to multiple parties, so it makes sense to put it in a letter to ensure you have all the necessary information for your request.

Your notification must:

• Be in writing (this includes both hardcopy or digital);
• Be signed (whether in writing of via electronic signature) by the copyright owner or agent;
• Identify the original copyrighted work (or works if there ar multiple) you claim has been infringed;
• Identify the material that is infringing your copyrighted work;
• Include contact information so the designated agent can reach you, if necessary;
• Include a statement your complaint is in “good faith;”
• Include a statement the information in the notification is accurate; and
• Include a statement that under penalty of perjury you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Below I provide a SAMPLE DMCA TAKEDOWN NOTICE TEMPLATE. You are free to cut/paste and use it as you see fit. You will need to gather the appropriate information specific to your request, which I have designated in red.

— — — — — — — — — — — — — — —

SAMPLE DMCA TAKEDOWN NOTICE TEMPLATE

To Whom It May Concern,

The following information serves to assert my rights and request removal of allegedly infringing web content under the Digital Millennium Copyright Act (DMCA). The following is a report, in good faith, of alleged copyright infringement. I am contacting you as the designated agent for the site upon which the infringing work currently appears. This letter is a Notice of Infringement as authorized in §512(c) of the U.S. Copyright Law.

I am the copyright owner of the works and the following is true and accurate.

1. The original work, for which I claim copyright, appears, with my permission, at the following locations online:

{URLs WHERE YOUR ORIGINAL AUTHORIZED WORK APPEARS}

2. Copies of my original copyrighted work are {attached/included/provided} to assist you in your evaluation and determination.

3. The allegedly infringing {work/text/image} appears at the following location(s) online:

{URLs WHERE INFRINGING WORK IS CURRENTLY LOCATED}

4. My contact information, as copyright holder, is as follows:

{INCLUDE YOUR CONTACT INFORMATION}

5. The information of the alleged copyright infringer is:

{INSERT WHOIS INFORMATION FOR THE SITE YOU ALLEGE IS INFRINGING}

6. I have a good faith belief the use of the above reference copyrighted work(s) that appears on the website for which you are the designated DMCA agent is not authorized by the copyright owner, its agent, or by law.

I declare, under penalty of perjury, this notice is true and correct and that I am the copyright owner entitled to exclusive rights which I allege are being infringed.

Signed this ________ day of ___________, 20_____ in {INSERT CITY, STATE, COUNTY}.

{YOUR SIGNATURE/eSIGNATURE}

— — — — — — — — — — — — — — —

Filing a DMCA Takedown does not mean every instance of your copyrighted work will be removed from the internet. You will need to submit a request for all the different locations you find your work. No, that’s not awesome. But it’s how it works.

Finally, keep in mind that the alleged infringer will have access to the information provided in your takedown notice. In addition, the alleged infringer can file a counter-notice, which is basically a reply, stating why the work does not infringe your copyright. If that happens, the work will likely be reposted and you will need to pursue other measures to enforce your copyright.

UPDATE: All DMCA Takedown Notice documents must be signed under penalty of perjury. Filing a false DMCA Takedown, one that does not consider the applicability of an exception (such as parody or fair use), or one that does not relate to a copyright issues can bring with it significant legal liability, including criminal penalties. Filing a DMCA Takedown is a legal matter and should not be done without the full understanding its implications for you. 

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are for information purposes only and are not offered as legal advice. No attorney/client relationship is created.