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.
* * * * *
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?
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).