by Ken Liu
Many writers have heard of the “DMCA takedown notice” but not everyone understands what it is. In this post, I’ll try to explain the basics and give you some ideas about how to use the tool to protect your rights and how to respond if you’re on the receiving end of one that you consider to be without merit.
As usual, note that although I am a lawyer, the following is offered for education and information purposes only and does not constitute legal advice. Always consult a copyright lawyer for your individual circumstances.
Also, in the following discussion, I refrain from commenting on whether the DMCA takedown notice process implements wise policy. I describe the law as it is, not as it ought to be (or I wish it to be).
What is it?
The so-called “DMCA take down notice” is a creature of Title II of the Digital Millennium Copyright Act (“DMCA”). It added Section 512 to Title 17 of the United States Code (Copyright), which basically exempts certain online service providers (“OSPs” or sometimes “ISPs”) from liability for copyright infringing acts by its users, provided it meets certain conditions (such as being responsive to copyright holders when given notice of infringement on the network the OSP controls).
The definition of an OSP for purposes of the DMCA is quite broad: “a provider of online services or network access, or the operator of facilities therefor.” 17 USC §512(k)(1)(B). This would include most sites that offer user-generated content such as web hosting companies, blogging platforms (LiveJournal, Blogger, Tumblr), discussion forums, and so on.
Among the conditions that an OSP must meet to be exempt from liability are:
- No actual or constructive knowledge of infringing behavior (this basically excludes any site that maintains editorial control over the posted content, such as a moderated fanfiction site);
- No financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity;
- When given a proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.”
17 USC §512(c)(1).
It is the notification referred to in (3) above that has become known as the “DMCA takedown notice.” In brief, when an OSP receives such a notice from a copyright holder, it is required to remove or disable access to the accused material in order to avoid being held liable itself.
So if I find someone stealing my story and posting it on their blog, I can just get the blog hosting company to take it down? Why would they act against their customer to help me?
The OSP is incentivized to take down material that is claimed to be infringing in two ways.
First, complying with your request shields it from being held as a contributory or vicarious infringer if you’re right about your claim.
Second, the DMCA also shields the OSP from liability to its customer if the material is held ultimately not to be infringing. 17 USC §512(g)(1) (“a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material … regardless of whether the material or activity is ultimately determined to be infringing”).
So, yes, they will listen to you (but see more on overseas sites below).
This sounds like a really good way to get rid of pirates.
Compared to the normal legal process for getting an injunction to remove an infringing copy from the network, which takes a long time and an enormous amount of resources, a DMCA takedown notice is fast, simple, and can be drawn up by a copyright holder without the help of a lawyer. It really is very powerful.
Moreover, you can issue takedown notices not only for the infringing material itself, but also “information location tools” pointing to the material—including “directory, index, reference, pointer, or hypertext link.” 17 USC §512(d).
However, note that many dedicated piracy sites are hosted overseas, outside the reach of US law enforcement. In such cases, a DMCA takedown notice is likely to be ignored.
So what does a takedown notice look like?
A DMCA takedown notice only has to contain a few pieces of information, and there is no set format. Basically, you write up a letter requesting that the OSP remove or block the offending pages and include the following pieces of information in the letter:
- Your signature (assuming you’re the copyright holder or you’re authorized to act for the holder);
- Identification of the work that is infringed (or a representative list of such works), e.g., titles of your stories and URLs where they may be found;
- Identification of material that is infringing and which you wish to have taken down or blocked and enough information to allow the OSP to locate the material, e.g., an URL to the offending page;
- Ways for the OSP to contact you, such as an address, phone number, and an email (best to include all three);
- A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and
- A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
17 USC §512(c)(3).
Where do I send this notice?
The DMCA requires OSPs to provide the Register of Copyrights with the contact information of a designated agent specifically set up to receive takedown notices. And the Register of Copyrights has published this directory of agents online: http://www.copyright.gov/onlinesp/list/a_agents.html
When you find that someone has infringed your copyright, you can go to this directory to find out where to send your takedown notice (they all have email addresses).
If the offending page is on a hosted blog like LiveJournal or Blogger, finding the right OSP is relatively easy. Sometimes, when the infringer is running a stand-alone web site, you’ll need to find the hosting company by conducting a WHOIS query or other similar technical investigation.
But what if I publish a parody or quote from a work as part of a fandom analysis? Aren’t those uses protected? Can the unhappy copyright holder of the original issue a takedown notice to my hosting company?
Indeed, the unhappy copyright owner in your hypotheticals can do so. Putting aside whether your “parody” or “analysis” is protected—a complicated question that requires case-specific analysis to answer—the OSP will not be liable to you for taking down your work in response to a properly drafted takedown notice as long as it does so “based on facts or circumstances from which infringing activity is apparent.” 17 USC §512(g)(1).
There are a lot of gray areas when it comes to “fair use” and related doctrines, and the OSP isn’t obligated to do much research. It can just take your page down if it looks like you’re infringing (and a parody or analysis with quotes will look like infringement).
Do I have any recourse if I know I’m not infringing?
You do. First, the DMCA provides for damages and attorney’s fees for “any person who knowingly materially misrepresents” the facts in a takedown notice. So someone who abuses the DMCA mechanism by lying to take down your page when they have absolutely no case is going to face some heavy sanctions. But “knowingly materially” is a pretty high bar to pass. Most cases of aggressive takedown notices won’t be so egregious.
In cases like the gray-area “parody” or “analysis” hypotheticals, if you, after consultation with copyright specialists, believe that you have a right to publish your allegedly infringing work, the DMCA provides for a “counter-notice” mechanism to put your page back up.
A counter-notice, which you send to the OSP after they inform you that they’ve taken your page down (something they’re required to do under 17 USC §512(g)(2)(A)), is also very simple, and needs to include only a few simple pieces of information:
- Your signature;
- Identification of the material that has been removed or blocked and where it used to be found, e.g., the URL of your page;
- A statement under penalty of perjury that you have “a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court applicable for your address and that you will accept service of process from person who issued the DMCA takedown notice (that is, you agree to be sued if it comes to that).
17 USC §512(g)(3). Note that you do not have to explain why you believe you have a right to post what you did.
After the OSP gets this counter-notice from you, it has to forward a copy of your counter-notice to the issuer of the DMCA takedown notice and inform them that the OSP will restore access to the removed material in 10 business days. And unless the DMCA issuer notified the OSP before then that they have filed an action in court seeking to restrain you from posting, the OSP must restore access to the removed material. 17 USC §512(g)(2).
Sum it up for me, please.
A DMCA takedown notice can be a cost-effective, quick, and powerful tool to remove material that infringes your copyright. In an age where electronic publication has made piracy an often-discussed topic, it gives individual authors more power to protect their rights. At the same time, the DMCA takedown mechanism has certain safeguards in place to protect the rights of those who have a right to publish material that is not infringing