Digital Millennium Copyright Act (DMCA) Notices: What You Need to Know
The Process for Sending and Receiving DMCA Takedown Notices
With the explosion of the internet in the mid-1990s came an increase in the theft of copyrighted works on websites. As a result, the Digital Millennium Copyright Act (DMCA) of 1998 updated copyright law to protect hosting services and allow copyright holders a way to give notice to people who illegally copy content with a takedown notice process.
What Is a DMCA Notice?
A major part of the DMCA is a process for removing copyright violations from digital media, including websites, by sending a notice to someone the copyright holder believes has stolen their content. It’s also called a “takedown” notice because it requires that the offending content be taken down and removed from the website.
A DMCA takedown notice can be sent even if the content that was stolen isn’t registered. If you own the content, that’s sufficient enough. However, although it’s true that someone can send a takedown notice if they haven’t registered the work, the issue can’t be taken to court unless the work is registered.
The takedown notice process involves your business as the copyright holder, the other website, and the service company that hosts the website. The latter company, called an internet service provider (ISP), is involved because it must take down the offending content from its subscriber’s site. The DMCA protects ISPs from liability for taking down the content, and the ISP agrees to send notices of declared copyright violations to its subscribers.
Before You Send a DMCA Takedown Notice
While not required, you can protect your original content on your website by registering your copyright. That includes blogs and other writing, artwork, social media, music, and images. Your content doesn’t have to be published to receive copyright protection, and it doesn’t have to be registered with the U.S. Copyright Office in order to send a takedown notice.
Before you begin the process of sending a takedown notice, consider whether the content is being used under the fair use principle. This principle allows the use of limited parts of a work including quotes for commentary, criticism, news reporting, and scholarly reports. If fair use applies, the content hasn’t violated your copyright.
How a DMCA Takedown Notice Works
Let’s say you find content on another website that you believe is violating your copyright. Here’s the takedown notice process:
- You send a notice to the designated agent of the ISP that hosts the offending website. The designated agent is the ISP’s agent for sending and receiving legal notices.
- The ISP files the information with the U.S. Copyright Office.
- The ISP removes the content in question and promptly notifies the offending party of the takedown and why it was done.
- The ISP also notifies you that the content has been taken down.
The person that receives a takedown notice has a right to respond.
How to Find a Website’s ISP and Designated Agent
- Start by looking up the website on Whois.com. Enter the domain name. If it’s taken (it probably is), click on the orange “Whois” button.
- Go to “Name Servers,” not the registrar (that’s for the domain name), and get the server name. That’s the ISP.
- Search for that ISP in the U.S. Copyright Office’s DMCA Designated Agent Directory. If the ISP does not have a designated agent, you will need to consult an attorney.
What Is Included in a DMCA Notice?
There is no specific approved takedown notice format. Here’s a list of information you should include in the notice:
- Your company’s information and contact information
- The signature of someone authorized to act on your behalf (someone from your company or an agent)
- A detailed description of the work you believe has been pirated, whether copyrighted or not, including its URL (web address), so the ISP can locate it on the website
- A statement that you have a good faith belief that the activity is unauthorized
- A statement that the information you have given is correct under penalty of perjury and that your agent is authorized to act on your behalf
If everything isn’t complete and accurate, you risk having a court denying your charges because the notice doesn’t meet the requirements of the DMCA.
If you believe that someone is stealing content from your website, the only way to get it removed is to follow the takedown notice process above. It’s important to act quickly when you see the content you believe to be pirated for two reasons:
- Acting quickly gets the pirated copy off the site
- If you don’t act quickly, you are saying it doesn’t matter, and a court might find your case weak
How to Respond to a DMCA Notice
Those receiving a takedown notice have the right to respond by filing a counter-notification. Find the information in the notice about your internet service provider’s designated agent (someone who can legally represent the ISP). You must send the notice to this person.
In the counter-notification, you must:
- Identify the material that has been removed (be specific here, including the web address)
- Include a good faith statement that the material was removed through mistake or misidentification (in other words, you don’t believe you have violated the copyright)
The DMCA includes penalties for knowingly making false statements in either a notice or a counter-notice.
If you choose not to respond with a counter-notice, the matter is closed because the content has been taken down. But if you send a counter-notice, you’re saying you disagree with the takedown. Be aware that this letter can trigger legal action.
How to Respond to a Counter-Notice
If the party that received the takedown notice (the subscriber) sends a valid counter-notice—unless the copyright owner (original complainant) files an action seeking a court order against them—the ISP must put the material back up within 10 to 14 business days after receiving the counter-notification.
The DMCA Takedown Notice Process
- Anyone who owns digital media, including website contents, can send a notice to someone who they believe is illegally copyrighting content.
- The notice should identify the content and state that the content is a violation.
- The internet service provider (ISP) hosting the offending content must remove the content.
- The other party may send a counter-notice and the original party must respond quickly.
The Bottom Line
U.S. copyright law—and the DMCA in particular—is complex and each case is considered individually. Because filing a DMCA takedown notice (and dealing with counter-notices) due to illegal copying and use of content can be a lengthy, multi-layered process, get help from an intellectual property attorney. They may be able to help you research and prepare the notice, and guide you through the rest of the steps before taking action.