The Digital Millennium Copyright Act (“DMCA”) provides copyright owners with valuable and powerful tools for enforcing their rights. One of the most important in this arsenal can be the DMCA takedown. The goal of this article is to help you understand the DMCA process as well as educate you on what steps you need to take if you are a copyright holder or have received notice of a DMCA takedown.
The DMCA takedown notice
Any copyright owner, or authorized representative, can file a DMCA takedown notice for a work they own. The takedown notice is sent to the service provider’s designated agent, most service provider’s websites have instructions on doing so. The service provide is the company that owns the website or other location that the infringing work is on.
The written notice must include:
- Your contact information (the service provider must be able to contact you).
- The works you claim are being infringed, and the location of those works.
- A statement asserting that the use you are reporting is not authorized and that the information you have provided is accurate.
- Your signature (electronic is acceptable).
Removal of claimed infringing material
If you have submitted to the service provider a notice that substantially complies with the DMCA, the service provider should promptly take down the claimed infringing material. If you have not, the service provider will often work with you to correct deficiencies in your notice. The servicer provider will also notify the alleged infringer that the material has been removed, and inform them that they may submit a DMCA counter-notice.
If you are the copyright holder, this is the last step in which you are involved. However, if you have received a DMCA takedown notice, the following section will be the most important to you.
The DMCA counter-notice
The DMCA allows an alleged infringer to respond to claims of infringement. This is known as the DMCA counter-notice. The written counter-notice must include:
- Your contact information and signature (again, the service provider must be able to contact you).
- The works that were taken down by the original notice, and where those works were located.
- A statement asserting that the material taken down was done so under mistake or misidentification. You must also consent to service of process and to the appropriate jurisdiction, should the original claimant choose to take further legal action.
Once the service provider has received your counter-notice, they have between 10 and 14 business day to restore the original materials, unless during this time the original claimant institutes additional infringement proceedings. If no additional proceedings are filed, your materials will be restored and the DMCA process is complete.
As a final take away, do not take sending or receiving a DMCA takedown notice or counter-notice lightly. The DMCA takes material misrepresentations seriously, and you can be found liable for the manner in which you conduct yourself during the process. If you are unsure as to if you should send a takedown notice, or how you should respond to one you have received, consult with a knowledgeable copyright attorney on the matter.