As a small business or website owner, it is important to protect your intellectual property online. Copyright infringement can be detrimental to your business and can result in a loss of revenue and reputation. Unfortunately, prior to the passage of this act, your only recourse may have been through the time-consuming and expensive litigation process. Fortunately, the Digital Millennium Copyright Act (DMCA) provides an easier way for copyright owners to protect their work. This is accomplished by sending a takedown notice to the infringing party's internet service provider (ISP).
The On-Line Copyright Infringement Liability Limitation Act, also known as the DMCA, is an important piece of legislation found in section 512 of Title 17 of the United States Code. This act provides qualifying Internet Service Providers (ISPs) with a "safe harbor" from specific copyright claims that may arise from the actions of third-party internet users. By offering this protection, the DMCA promotes the responsible use of copyrighted material on the internet and encourages ISPs to take necessary measures to address copyright infringement. In this blog, we will discuss the proper procedures for sending a DMCA takedown notice to an ISP.
Step 1: Identify The Infringing Content
The first step in sending a DMCA takedown notice is to properly and accurately identify the infringing content. This could be anything from a blog post, other content, a photo or a graphical element. You will need to provide the ISP with a specific link to this content that is infringing on your copyright so the ISP can identify it on the infringer's site.
Step 2: Ensure You Own The Content
Before sending a DMCA takedown notice, you must be sure that you are the copyright owner or have the legal authority to act on the owners' behalf. This does not necessarily mean that you have to have a copyright registration (although having a registration provides much more protection for your copyrighted content and acts as a deterrent as well), but you must be the owner of the work. Ownership typically belongs to the individual who created the work (referred to as the Author). However, it's important to note that the rules differ if the work falls under the category of "work made for hire." In such cases, assuming specific conditions are met, the employer or a commissioning party would be considered the author. Failure to follow this critical step can subject you to civil liability or even criminal liability for making a false statement in the notice.
Step 3: Determine If The Use Of The Content Is 'Fair Use'
This is a tricky determination because there is no definition for what 'Fair Use' is. It's determination can change with the facts of each case. Fair Use is a legal excuse to use a copyrighted work. However, When evaluating whether the use of a work constitutes Fair Use under the copyright statute, four factors should be taken into consideration:
The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation to the whole copyrighted work.
The effect of the use on the potential market for or value of the copyrighted work.
These factors are outlined in section 107 of the U.S. Copyright Act (17 U.S.C. § 107). However, it is always a good idea to consult with an attorney knowledgeable in such areas before deciding whether a fair use of the content is warranted, before sending a takedown notice.
Step 4: Find the Correct Contact Information
In order to send a DMCA takedown notice, you will need to find the correct contact information for the ISP hosting the site. Each ISP has their own specific email address or other contact information for sending such notices. Many times this information is found on the ISP's site or within its' terms and conditions page. The different types of ISP's include:
Providers who store user-generated content (e.g., Facebook, eBay and Youtube, etc.).
Providers who transmit, route, or connect to material. (e.g. Comcast, Xfinity, Ziply, etc.)
Caching Services that temporarily store material. (e.g. Amazon, Netflix).
Search engines like Google, Bing and Yahoo.
Step 5: Send the DMCA Takedown Notice
The DMCA takedown notice must be in writing and include specific information, including a statement that you are the copyright owner or authorized to act on their behalf, a description of the copyrighted work that has been infringed, a statement that the infringing content is not authorized by the copyright owner, and information about where the infringing content can be found.
Once you have sent the DMCA takedown notice, to benefit from the DMCA's safe harbor provisions, an Internet Service Provider (ISP) must promptly remove or disable access to the content specified in a proper take-down notice. Subsequently, the ISP must notify the content poster about the complaint and the content takedown. This process ensures compliance with legal requirements and safeguards against potential infringement claims.
The ISP must then provide the infringing party notice of the action taken, as well as information regarding the steps the infringer can take if they believe the content has been wrongly removed. This is known as a counter-notice. Should the infringing party send a valid counter-notice, the ISP must restore the removed content unless within 10 business days, it receives from the complaining party a notice that it has brought suit against the infringer. (A federal suit can only be brought if the content has a valid registered copyright, hence the importance of registration).
Step 6: Follow up on the DMCA Takedown Notice
After you have sent the DMCA takedown notice, it is important to follow up to ensure that the infringing content has been removed. If the content is still available after the set amount of time has passed, you may need to take legal action against the ISP or infringer directly to have it removed.
While this process is not overly complex, there are pitfalls that if the DMCA Notice is not done correctly, could lead to potential liability for the sender. Should you have any further questions or wish to conatct our office to send a DMCA Takedown Notice, do not hesitate to call us at 503-877-0881, email at info@intellequityip.com or book a low-priced consult here.