February 10th, 2017

Pirates Beware: How to Prepare and Use a DMCA Takedown Notice

Susan Spann

 Admit it…you’d like this sign at your desk.

The Digital Millennium Copyright Act (“DMCA”) is a U.S. law that contains a number of protections for content creators, Internet Service Providers, and the public, generally designed to “maintain a balance between the rights of authors and the larger public interest” including access to information.

I could write a book (and people have) describing the DMCA in detail, but the part of the law most relevant to authors – and the topic of today’s post – is the DMCA Takedown Notice. 

(Advance apologies for the length of this post, but it takes a few more words to demonstrate how to do this in a practical manner.)

The DMCA requires website hosts and ISPs to promptly investigate and resolve claims of copyright infringement, provided the claims are presented in a DMCA-compliant notice (normally called a “DMCA Takedown Notice”). The legal requirements for this notice are located in 17 U.S. Code Section 512 (c)(3). Or, in practical English:

In order to put an ISP on notice that content on the hosted website infringes copyright, the ISP must be sent a written notice (many ISPs accept these notices in electronic format, and many websites even have a DMCA submission form) containing the following information:

1. Specific identification of the infringing material that 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 infringing content on the hosted website.)

2. Specific identification of the copyrighted work the owner claims has been infringed. (If multiple works by one author are involved, the owner can send a single notice that lists all of the works.)

3. Sufficient information for the ISP or website to contact the person making the DMCA complaint. (Generally, this means a physical address, telephone number, and valid email address.)

4. A statement that the complaining party (that’s you, if you’re preparing the notice) has a good faith belief that use of the copyrighted material as described in the notice is not authorized by the copyright owner, any agent of the owner (such as a publisher), or the law.

5. A statement, made under penalty of perjury, that the information in the notice is accurate and that the complaining party (you, if you’re sending it) is either the copyright owner or legally authorized to act on the owner’s behalf.

6. The physical or electronic signature of the copyright owner (or an authorized representative, like an attorney, agent, or publisher).

If you discover your copyrighted material displayed on a website without permission, follow these steps:

Step 1: Make sure the website doesn’t have permission to post the material.

Check your contracts, licenses, and grants of rights (including the rights of publishers who may have granted permission!) to make sure the use is actually a copyright infringement.

Step 2: Make sure the use is not “Fair Use.”

Generally, offering free access to a copyrighted work in its entirety, without permission, is copyright infringement – but if the use is less than the whole, or if you’re not certain about fair use, contact a lawyer before proceeding with a DMCA notice.

Step 3: If the use is infringement, send a DMCA Takedown notice to the ISP, website administrator, or listed copyright agent.

If the website doesn’t include a copyright agent or administrator’s contact information, 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.

Although you can send a DMCA notice anywhere in the world, it may not be effective outside the United States, or with websites that exist purely for purposes of copyright infringement. Regrettably, DMCA notices—and even litigation—are often ineffective at stopping deliberate infringement. That said, DMCA notices can be effective with U.S. based websites, especially those that host third-party work on a regular basis.

Here’s a sample DMCA notice I wrote on behalf of a client:

(Information in brackets is redacted to preserve client privacy.)

*  *  *  *  *

[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, including publisher and copyright date.]

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 redacted.]

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.]

*  *  *  *  *

Obviously, I cannot guarantee that any DMCA notice will be effective – or that any website or ISP will comply with its legal obligations. Some websites take copyright seriously, and remove infringing content promptly upon receipt of a DMCA Notice. Others may ignore even properly drafted DMCA notices, either because they are sited outside the United States or because their operators do not care about compliance with copyright law.

That said, knowing how to prepare and use a DMCA Takedown Notice is an important skill for authors to possess, and it can be an effective tool for removing infringing content from the Internet.

And now for the legalese:

DISCLAIMER: The sample DMCA Notice above, and the content of this post is provided for informational purposes only, and is not provided or intended as legal advice to any person. This article does not create an attorney-client relationship between the author and any person. Use of information appearing at this article is done at the user’s own risk and not at the advice of the author or any other person, and neither the author nor Writers in the Storm have made any representations or warranties about its effectiveness.

If you believe your copyright or other legal rights have been infringed, consult an experienced attorney to advise you.

Have you experienced copyright infringement? What did you do? Do you have any publishing law questions for me?

About Susan

Ninjas-Daughter1
Susan Spann is a California transactional attorney whose practice focuses on publishing law and business, and is also the author of the Hiro Hattori (Shinobi) mysteries, featuring ninja detective Hiro Hattori and Portuguese Jesuit Father Mateo. Her fourth novel, THE NINJA’S DAUGHTER, released from Seventh Street Books in August 2016. Susan was the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and when not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.

Find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (/SusanSpannBooks).

24 comments to Pirates Beware: How to Prepare and Use a DMCA Takedown Notice

  • Wow – with a sample one! Your posts are so giving, and so helpful, Susan.
    Thanks for all you do for writers.

  • Susan, this is great information. I have had to contact Google twice because an alert came up showing sites that say my book is available for free download. I think both times the sites were pfishing scams to get people to click on the site (and it would serve them right if they did!) and both times it was removed within a couple days. They have a simple “fill in the blank” form, but it does follow right along with what you said above. I’m glad now to know that if needed I can send something myself and have the right info in it to maybe get ‘er done. Thanks again! Have fun at the retreat. Wish I could be there.

    • I’m sorry you’re finding infringement, Terri – but sadly, I don’t know any writer whose works haven’t been subject to this (either actually posted or “posted” by phishing sites that don’t have the book but are using it to lure the unsuspecting). The sites that have fill in the blank forms are fantastic, because they make this even easier. The forms are based on the same DMCA provisions, which is why they look so similar.

      I’m sorry I’ll miss you at the retreat!

  • angelaackerman1

    This is great. I have had so much infringement issues I have tried a few services to do these for me, but it only slows the dam. I find it so frustrating (and especially disheartening) because all of my books are on writing, so the only people who would pirate our stuff would be the very people who should most recognize hard work and the value of books: writers and teachers. I also had a book cover infringement that fell under “distinguishing guise” infringement, and luckily Amazon was very quick to act on that one, even thought the author was a “ghost” with no real identity so I couldn’t get in touch with them personally.

    I actually do have a publishing legal question, not about piracy, but infringement, if you’re willing. 🙂

    I am wondering what the process is for authors who use excerpts of novels in their books for teaching purposes. Many writing books uses passages of novels (I just read Donald Maass’ newest on emotion, for example, and he will use up to a page of text from other books) to highlight a point. In Maass’ case, he has a list of acknowledgements in the back.

    I know if something is Public Domain, it is fine to use, but what about works that are not? Is citing the source as it is used to teach a concept plus listing the book/author/publisher in the back the correct way to use samples in this manner, or would Maass’ publisher also sought permission from the publishers first? And of course I understand the sample would have to be a reasonable size–not pages of text. Just wondering what is the process here and the legality of using a sample for teaching in this way.

    Thanks Susan (and sorry to be long-winded!) 🙂

    • Thanks for adding questions, Angela! That’s always helpful for Susan, since her posts are so wonderfully specific.

      And shame on those writers. I’m boiling over that for you and Becca. Geesh. And after you make the information so accessible via OneStop…it’s just unconscionable .

      • Angela, it must be disheartening, in the extreme, to realize other writers are illegally downloading (stealing) your works, when you wrote them to help writers. I’m so sorry to hear it’s happening to you too. This is one aspect of the writing business (and the Internet) that disheartens me. I hate seeing people steal from one another, especially when recourse can be difficult to obtain.

        To answer your question: sometimes, limited use of copyrighted works qualifies as “fair use” when done for teaching and informational purposes – though selling the product in which the use is contained is evidence against it being “fair use” – since the fair use test has multiple components, and is facts and circumstances based, there is no bright line rule about how much (for example, under a page) constitutes fair use. It’s always determined based on the actual use, in context.

        Authors who use excerpts often get permission from the authors they want to quote. When they don’t get licenses, they usually have a publishing lawyer review the work to make sure each use qualifies as fair use (this can be *very* expensive if the lawyer isn’t in-house and on salary, for example with a publisher).

        Using acknowledgments does not render otherwise infringing use legal – “I cited the source” is not a defense, and does not mitigate infringement liability – but acknowledgments (especially when used by a professional of Don Maass’s stature and reputability) suggest to me that the authors may have given him permission for the quotes. I don’t know the process Don uses, so I can’t speak to him personally other than to say based on his reputation and the quality of his work, I’d be shocked if he didn’t get permissions in advance (and if he didn’t, it’s because he had a lawyer doing the necessary review).

        Sorry for the wall of text, but fair use isn’t a “short answer” type of question. The best short response I can give is: if you’re teaching a workshop verbally, it’s generally legal to refer to tactics and techniques other authors use, because that’s “fair use for teaching purposes” (note – we’re not talking about reading the entire work, but discussing its techniques or maybe reading a few lines should be ok). If you’re writing a book that you intend to sell, you need to get permissions or have a copyright lawyer review the work and give you a legal opinion that the uses qualify as fair use.

        • angelaackerman1

          This is a terrific help, thank you so much Susan! As a writer, I would never want to infringe on the rights of another, so I wanted to make sure of what the best practice was. You’re the best for offering your brain to all of us–thank you!

  • Susan, this is AWESOME. I love that you gave us a sample, and that you explain clearly what it all means. Every author I know (except Joe Konrath) detests all the book pirates. I’m stunned to read Angela’s comment above – I had no idea her books would have a pirating issue because, hello? Writers.

    • I’m glad to do it, Jenny – and I’m thrilled that you liked it. I try to make things as practical as possible, because otherwise people can’t use the knowledge easily. I wish I was surprised that Angela gets pirated. Sadly, there are just far too many people – including writers – who don’t think about the fact that “free downloads” offered by anyone but the original author/publisher are actually stealing.

    • angelaackerman1

      I think piracy is something we’re all hit with, no matter what we right. What i hate is that it is almost impossible to do anything about it because Torrent sites simply take the stand that they didn’t upload it, someone else did.

      The only thing that gives me satisfaction is the fact that many of the illegal sites are phishing sites. So, you take your chances if you’re a pirate and might get more than you bargain for, like malware and credit card info stolen. I’m not going to cry over that, either, because Karma.

      Have a great day, ladies!

  • Margie Lawson

    Smart, smart, smart blog!

    Love the clarity and specificity. Kudos to Susan Spann!

    Every author needs this info. I’m promoting this blog, big time.

    As always — THANK YOU WITS!

  • Susan, I was delighted to see your newest post this morning, since you and I had a private discussion about this subject recently. Thank you for bringing clarity to this thorny issue and elucidating on how to go about combating it. The comments by others are somewhat comforting; demonstrating that we are all fair game to pirates and scammers. On the sites where I found my book listed, I noticed authors such as James Patterson listed as well. Given that small clue, I backed off until I could get more information.

    One point that you shared with me privately is as follows – paraphrasing from your email. Sometimes these sites may contain viruses in addition to being exercises in phishing. The web site may be trying to get you to download the file which secretly holds a program that allows the pirate access to your (author’s) computer, which in turn would allow the pirate to gain access to, and strip information from your hard drive. So a bit of caution is probably warranted if you aren’t already hyper-cautious.

    Knowing the years of toil it took to put my work together, my sweet husband (who is a retired software engineer) was livid to know someone had been giving my work away for free. He went to work checking out the offender, and realized that they were coming from the Netherlands. However, their command of the English language on their DMCA statement page indicated that there was a possibility that they could be routing through the Netherlands from China. Neither of which would likely follow our DMCA laws.

    As per his instructions, the way to check on where the IP address is geographically located is to do an DNS lookup by using the cmd.exe program on your Window’s operating system.

    How to do that?

    1. Look for the “Command Prompt” program on your taskbar and click.

    2. You will get a dialogue box that says:
    “Microsoft Windows [Version. a number showing your version appears here]
    Copyright 2009 Microsoft Corporation. All rights reserved.
    c:\Users\ your name>”

    3. In the space where you see the prompt i.e. —- c:\Users\ your name> – Run the nslookup command with the domain name that you already know i.e. the web site where your book appears. In my case it is Bookprem.com.

    So in the cmd.exe program you should input the following:

    c:\Users\ your name>NSlookup bookprem.com
    then do a carriage return
    The program will then return more information about the server and an IP address.
    In my case the above command comes back with an IP address of 185.142.236.224

    4. Continuing working in the cmd.exe box by typing
    C:\Users\your name>ping 185.142.236.224
    and hit carriage return.

    Your cmd program will then ping the remote server to see if it is active. You will get a series of replies indicating if there is activity on the IP address. Below that will be more information showing Ping statistics. The only thing that is important here is that you know the IP is active on a server somewhere in the world. Now to find out where that server is!

    5. Once you have the numerical IP address you can continue your search by going to an ISP lookup.

    Open a new window in your browser and go to: http://geoiplookup.net.
    Just type the IP address into the search box and press carriage return.
    Geoiplookup will then show you exactly where the web page is hosted and the name of the server where it is hosted. In my example the IP is hosted in Amsterdam, Netherlands by and ISP known as BlackHOST LTD.

    Finally, all this may add some clarity to an issue that as authors we all seem to face.

    As a researcher, I have also taken to posting only excerpts of information on my web site, as a lot of lazy people will just lift everything from a web page and put it into their own research and never give credit. I don’t give citations to legitimize their work. Sigh, but I suppose that it another subject.

    Sue Simonich, author of Painted Skies
    available at Amazon.com
    admin and researcher of worldwidenewburghproject.com

  • I’ve sent many, many takedown notices since my first book was published four years ago. I’d say eight times out of ten my infringed content is removed within 24 hours. WordPress was especially swift when I found a WP site dedicated to nothing but illegal downloads of books. They had the entire site gone a mere five minutes after I sent them the notice. I’ve even been lucky enough to have some Russian sites take down my content as well, but those have been few and far between. Never hurts to try, though, and sometimes you get lucky. I take one day a month and chase down pirated copies of my books and sending out DMCA takedown notices. It’s a pain, but part of it, I guess. Unfortunately, it’s kind of like chopping off a Hydra’s head. Kill one site, and two more pop up in its place. But it does feel good to know you’ve managed to thwart those SOBs for a while at least. Thanks so much for the great post!

  • Susan, you have absolutely great information that you generously share. Thanks!

  • Susan, Terri Benson posted the following in a comment to you. My question: how does one contact Google about this? Do you have an e-mail address for that? Thanks, Andrea

    Susan, this is great information. I have had to contact Google twice because an alert came up showing sites that say my book is available for free download. I think both times the sites were pfishing scams to get people to click on the site (and it would serve them right if they did!) and both times it was removed within a couple days. They have a simple “fill in the blank” form, but it does follow right along with what you said above.

  • love the legal issues you spotlight on this blog!

    denise

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