In 1998, the U.S. enacted the Digital Millennium Copyright Act (“DMCA”), which includes numerous protections for authors, Internet Service Providers, and the public, many of which are designed to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information.”
I could write a book (and people have) describing the DMCA in detail, but today we’re looking at only one element of the law: the DMCA Takedown Notice.
I’ll apologize in advance for the length of this post, which definitely exceeds my usual 500-word cutoff. (There’s just no short way to get this particular information across.)
Essentially, the DMCA requires website hosts and ISPs to investigate and promptly resolve claims of copyright infringement, as long as those claims are presented in a proper form that complies with the DMCA requirements. The requirements for a DMCA-compliant notice of copyright infringement (sometimes called a DMCA Takedown Notice) are located in 17 U.S. Code Section 512 (c)(3).
In order to put an Internet service provider on notice that material on the ISP’s hosted website infringes copyright, the ISP must be sent a written notice (which many ISPs will accept in electronic format) which includes the following information:
1. The physical or electronic signature of the copyright owner (or an authorized representative, like an attorney, agent, or publisher).
2. Specific identification of the copyrighted work claimed to have been infringed. (If multiple works are infringed on a single site, the owner can send a single notice with a list of the works infringed.).
3. Identification of the material that is claimed to be infringing and which the owner is asking the ISP to remove (or disable access to), along with enough information for the ISP to locate the material. Normally, this means a URL or link to the place where the infringing content appears on the relevant website.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party (the owner or his or her agent) has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner with regard to stopping infringement of the owner’s exclusive rights.
If you discover your copyrighted material (which includes blog posts, photographs, and articles as well as novel-length works, excerpts, and artwork) displayed on a website without permission, the first step in stopping the infringement is sending a DMCA Takedown notice to the website administrator or copyright agent. If the website doesn’t include a copyright agent’s contact information, send the notice to the website administrator. If the website doesn’t have contact information, you can send the notice to the website’s host (the ISP which hosts the website on its servers).
Be aware: a DMCA Notice is only effective with U.S.-based ISPs and websites, ISPs and websites in countries which have signed the copyright treaty that prompted the DMCA’s enactment in the United States, or ISPs and websites in countries where the law protects copyright in a similar manner. You can send a DMCA notice anywhere in the world – and it does provide the information any ISP needs to stop infringement – but it may not be effective outside the United States.
All of this probably makes sense, but doesn’t help you write that notice. In light of which, and with understanding of the disclaimer at the end of this post, here’s a sample DMCA notice I wrote on behalf of a client. Information in brackets is removed/redacted to preserve client privacy, and would be replaced with the information identified in the brackets.
[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. You can include publisher and copyright date, if relevant.]
Work Title #1, by Author (PublisherNameIfAny, Date of Publication), copyright [year]
[Repeat for additional Works, if needed.]
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 for author or authorized person sending the email – and yes, you have to use your legal name.]
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.
Respectfully, [Signature of person sending notice.]
DISCLAIMER: The sample DMCA Notice above is provided for informational purposes only, and not provided as legal advice to any person. Neither this notice nor this article creates an attorney-client relationship between me and you or between me and any other person. If you believe your copyright or other legal rights have been infringed, I strongly advise you to consult an attorney to protect your legal rights. If you elect to use this, or any other, DMCA Notice, you do so at your own risk and not at my advice, and I have made no representations or warranties about its effectiveness.
Authors, or their legal representatives, must send a separate notice to each website where infringement occurs – so if your work is infringed on multiple websites, you can’t just send one notice to everyone together. This is because each ISP must investigate the specific URLs where the infringement occurs on its website, and cannot be expected to wade through a list of URLs to find the ones which relate to its websites or servers. It takes a little extra time for the author (or representative) to prepare individual notices, but that’s what the law requires.
I cannot guarantee that the notice above will be effective – or that any ISP will comply with its legal obligations. Some websites take DMCA compliance very seriously, and will investigate and remove infringing content promptly upon receipt of a DMCA Notice. Others (notably those which specialize in piracy and infringing material) tend to be less responsive, and may require additional intervention by a copyright lawyer. However, the DMCA Takedown Notice does represent a fairly simple way for authors to utilize self-help in protection of copyright, and in many cases it is effective at getting infringing content removed from the Internet.
If you have questions about this or other publishing legal or business topics, feel free to ask me in the comments!