THE DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)

What is the DMCA notice and takedown process?

 

The DMCA notice and takedown process is a tool for copyright holders to get user-uploaded material that infringes their copyrights taken down off of websites. The process entails the copyright owner (or the owner’s agent) sending a takedown notice to a service provider requesting the provider to remove material that is infringing their copyright(s). A service provider can be an internet service provider (e.g., Comcast), website operator (e.g, eBay), search engine (e.g., Google), a web host (e.g., GoDaddy) or other type of online site-operator. There are several elements that should be included in a takedown notice that are specified by the copyright law. If most of these elements are not included, the service provider may refuse to take down the material. Even if a takedown notice meets all the legal requirements, the service provider still may refuse to takedown the material. However, if they fail to do so, then they open themselves up for potential secondary liability for assisting with copyright infringement.

How do I send a DMCA notice to get infringing material taken down from a site?

Your DMCA notice should:

• include your signature or the signature of a person authorized to act on your behalf (your “agent”) (the signature can be either physical or electronic);
• identify the copyrighted work that is being infringed;
• identify the activity that is infringing and information reasonably sufficient to permit the service provider to locate the infringing activity on its site;
• include your email address and any other information to allow the service provider to contact you or your agent directly;
• include a statement that your or your agent has a good faith belief that the activity is unauthorized; and
• include a statement that the information in the notice is accurate and, under penalty of perjury, that your agent is authorized to act on your behalf.

For more information, see Elements of a Proper DMCA Takedown Notice in the Copyright Law Explained section of this site.

You should send your notice to the service provider who is responsible for the site. To send the takedown notice you will need to determine which service provider is hosting the site that is infringing your copyright(s). Sometime this is easy. For example, when the material is a link contained in a Google search or an auction posting on eBay, the service provider is Google and eBay, respectively. However, sometimes identifying the website host can be difficult. When the identity of the host is not apparent from the site itself, the host can often be determined by doing what is called a Whois Search.

Many service providers offer easy-to-use online tools to submit claims directly to the service provider through an online DMCA takedown form. For those service providers who do not offer these online tools or whose tools are difficult to find on their site, information about who to send the DMCA takedown notice to can be found on the U.S. Copyright Office website. The Copyright Office has created a directory of designated agents where you can look up the service provider to determine to whom and where to send the takedown notice.

Can I send a DMCA notice to get material taken down that is not an infringement of my copyrights?

 

No. The DMCA notice and takedown process must only be used to remove copyright infringements. In order to send a DMCA takedown notice, you must either be the copyright owner or a person authorized to act on behalf of the copyright owner. Before sending a DMCA takedown notice you should conduct a thorough, good faith investigation of the infringing activity to ensure that one or more of your rights is being infringed and that no exception or limitation, such as fair use, is applicable. You should only use the DMCA takedown process for the purpose that it was intended – to remove infringing material off the internet – and not use this process for non-copyright related reasons, such as to remove non-infringing criticisms of the copyright owner or copyrighted work or to remove trademark infringements.

I want to sue an online infringer but the person posted my material anonymously. How can I find out the identity of infringer?

 

Often online infringers use pseudonyms or take other steps to conceal their identities in an effort to make it difficult for copyright owners to pursue them for their infringing activities. However, there is a provision in the DMCA that helps copyright owners learn the identities of online infringers. Specifically, the DMCA allows a copyright owner or the owner’s agent to request the clerk of any U.S. district court to issue a subpoena to a service provider ordering the service provider to disclose the identity of an alleged infringer.

To obtain the subpoena the request must include the following elements:

• a copy of the takedown notice that was sent to the service provider;
• a proposed subpoena; and
• a sworn declaration that explains that: (i) the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer, and (ii) that such information will only be used for the purpose of protecting the owner’s copyrights.

If the subpoena meets these requirements the clerk will issue the subpoena ordering the service provider to expeditiously disclose to the copyright owner or the owner’s agent to identify the alleged to the extent such information is available to the service provider.