How do I file a DMCA Takedown Notice?

Q:

How do I file a DMCA Takedown Notice?

A:

A common misconception by internet users is that they may copy and use any and all online content. This is not true. What is true, however, is that internet technology continues to develop faster than the laws that can be created to protect it, and this common misconception of content use has allowed the internet to become a substantial threat to copyright protection.

As a business owner or content creator, you must take steps to protect your original internet content, including graphics, pictures, links, original text, audio, video, software and even email. Protection must be taken even if you have not formally registered your content.

So how do you protect your internet content, logos, pictures or resource lists from misuse by others? By understanding your legal rights, including your right to send a DMCA Takedown Notice and get the illegal content removed.

What is a DMCA Takedown Notice?

The Digital Millennium Copyright Act (DMCA) was created under the World Intellectual Property Organization (WIPO) Copyright Treaty, which was established and signed at the 1996 WIPO Geneva conference.

The first function of the DMCA is to eliminate the liability of web hosts from copyright infringement, assuming that certain elements exist. For example, the hosts must not be aware of the infringement, they must not promote it, they cannot generate a profit from it, they cannot control it, and they must follow the proper steps to eliminate and stop the infringement after they are property notified.

Next, the DMCA also gives users the ability to request that their copyrighted works be removed from a user's website after the author or creator has given proper notice to the website owner. This function is accomplished through a DMCA Takedown Notice.

How do I file a DMCA Takedown Notice?

The first step to send a DMCA Takedown Notice is to identify the offending party. For certain sites such as YouTube, eBay or Facebook, this should be fairly simple. In fact, they may have a link or web page dedicated to intellectual property violations.

If you are unable to find the contact information on the hosting site, another option is to contact the U.S. Copyright Office and review the list of DMCA agents. Unfortunately, complaints have been made that this site is not easy to use and may be out of date.

Another option, although less effective, is to send an email to an email address provided by the offending site (i.e., an address for "support").

The next step, after the offending party has been located, is to create and send the DMCA Takedown Notice. To create a legal DMCA Takedown Notice, the following elements must exist:

  1. It must be in writing.
  2. It must identify the material that has been illegally used.
  3. It must identify the copyrighted work.
  4. It must be signed by the owner of the material.
  5. It must include information about how to contact the owner.
  6. You must provide a statement that you have a “good faith” belief that the use of the material in the manner complained of is not authorized by you.
  7. You must show that you believe the information you have provided is accurate, and under penalty of perjury, that as the owner of the material, you are authorized to act and that you have the exclusive right to act.

For example, steps six and seven listed above can be accomplished by using the following statement:

“I have a good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law. The information provided here is accurate to the best of my knowledge. I swear under penalty of perjury that I am the copyright holder.”

Do I need a lawyer to file a DMCA Takedown Notice?

You are not legally required to hire a lawyer to create a DMCA Takedown Notice. In fact, in most cases, assuming that you can find the right offender, a well-written DMCA Takedown Notice is all that's needed to get illegal content removed from a website.

Unfortunately, some individuals without legal experience may find it difficult to create and send the letter without legal help. If you have questions about the proper steps to create a valid and legal DMCA Takedown Notice, you can contact a copyright attorney for help.

Additional Ways to Protect Your Online Content

If you have a website, not only is it important to understand how and when to use a DMCA Takedown Notice, but it's also important to take additional steps to protect your work from illegal use by others. Additional steps for protection can include registration of your website with the DMCA, adding a copyright notice to your site, using monitor detection tools, and hiring another service to monitor the internet for copied content.

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Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.

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