The Digital Millennium Copyright Act was enacted by the U.S. Congress in 1998 and signed by President Bill Clinton on October 28 of that year. Around that time, peer-to-peer file-sharing and other new digital technologies had facilitated widespread illegal access to copyrighted material.
In response, industry organizations such as the Recording Industry Association of America lobbied for the creation of a formal process by which copyright holders could assert rights over media posted to third-party websites and have copyrighted material removed promptly. The DMCA is the result – a collaboration between legislators, media companies, and consumer advocates.
How Can Notices Be Filed?
The core tool of the DMCA is the DMCA takedown notice. When a copyright holder learns of a violation, a DMCA takedown notice is issued to the service that hosts the offending website or to the Internet service provider (ISP) of the violator.
Infringing material can also be removed from search results by issuing a notice to a search engine. A written notice must be sent to the organization’s DMCA agent in writing, identifying the original copyrighted work and the material infringing on copyright. It must be signed by the copyright holder or that person’s agent.
There is no official DMCA takedown notice form that copyright holders are required to use. However, each complaint must adhere to certain specifications to be valid. In addition to identifying the suspected copyright infringement, the originator of the notice must provide their contact details, state that the notice is in good faith, state that all information in the notice is accurate, and state that under penalty of perjury, the originator is entitled to act on behalf of someone who owns an exclusive right – that is, a copyright – currently being violated.
We provide a free tool to help generate DMCA takedown notices.
How Does It Affect Webmasters?
Webmasters who are not engaged in copyright infringement are protected by the provisions of the Digital Millennium Copyright Act, especially if they host content for other Internet users. For example, one can find countless hours of user-submitted content on the video-hosting website YouTube. It would be impossible for YouTube to monitor all user-submitted items proactively, so the service would generally be protected from liability when users post infringing content. In exchange for this protection, the service must promptly remove infringing content when notified.
Webmasters who choose not to remove infringing material after getting a notice may be subject to criminal or civil penalties. Generally, prosecution for copyright violations focuses on major perpetrators, often end users. However, even when webmasters and hosts have not participated directly in wrongdoing, they might be found to contribute to copyright violations through negligence if they do not take proper steps to curb copyright violations. That includes making contact information available to copyright holders and removing infringing material quickly.
How Is the Copyright Office Improving the System?
One of the most significant issues with the current DMCA enforcement system is the way that DMCA agent information is collected. All online hosting companies, Internet service providers, and other businesses that post online materials at users’ direction are expected to designate a DMCA agent. There is a substantial fee associated with getting “designated agent” information listed with the U.S. Copyright Office, which can be punitive to smaller enterprises. Likewise, the DMCA agent listings available through the Copyright Office are frequently outdated.
Most of the businesses that comply with the DMCA and are protected by its statutes post contact information directly on their own sites rather than paying for a listing in the Copyright Office database. In response, the Copyright Office is looking for new ways to streamline and simplify the process. In time, this is likely to include a faster, more intuitive “online only” registration system that would replace postal mail registration entirely. Efforts to reduce the fees associated with agent registration by expanding the Copyright Office’s enforcement funding are ongoing.
How to File a DMCA Notice
Who Can Issue a DMCA Notice? Anyone can—including you. Upon finding your content on another site that has published it without your knowledge or consent, you are well within your rights under the DMCA to issue a takedown notice to the ISP hosting that site.
How Do You Issue a DMCA Notice?
Another way the DMCA offers protection to publishers is by not requiring an attorney or any other legal entity to issue takedown notices. You can do this yourself, in letter format, as long as the notice contains certain pieces of information:
- Location of the content infringing on your copyright: the URL where the plagiarized work is found; the title; any other identifying information
- Location of the original content: the URL, the title
- Your contact information: this allows the ISP to contact you while investigating your claim
- A “good faith” statement: this basically means you have good reason to believe use of the content you’re citing in your notice has not been authorized by the owner—you
- An accuracy statement: your word that the information you’re including in your DMCA notice is true to the best of your knowledge
- Your signature: it’s best if this is an actual manual signature, and not an e-signature
Some online entities, such as Google, Creative Commons, and Automattic (the parent company of WordPress.com), make it even easier for you by providing DMCA notice forms that you can fill out and submit directly to them.
Where do You Send a DMCA Notice?
If the ISP you must contact doesn’t provide an online form, you may have to mail the notice via postal service. Per the DMCA, ISPs are required to name an agent to respond to takedown notices, and to provide that agent’s contact information to the Register of Copyrights. Your DMCA notice must be sent to the appropriate ISP’s agent. If you’re unable to find that contact information on the ISP’s website, you can look it up here.
Do Paid DMCA Notice Services Exist?
Yes. Few things in this world can’t be accomplished by a third party and a nominal fee. If you own a personal blog or a very small website, you may not want to incur the expense of a service when you can simply write a letter yourself.
But if you’re a major publisher with dozens of websites, many or all of which have had content stolen, using a DMCA notice service can save you a lot of time and effort. Protecting your content is worth the investment.
Do DMCAs Work Outside the USA?
You’ve worked hard to build your website. You spent hours putting it all together, making sure every little detail was perfect. And you spent even more time writing a lot of great content to share ideas, not to mention help your site rank better. Your website is a result of not just time and effort, but care and attention. It’s a labor of love.
So when you see someone has stolen some of your content, it can feel like you’ve had the wind knocked out of you, and you’re left there, alone, staring at your carefully crafted words on a site that’s not yours. Your first thought is to issue a Digital Millennium Copyright Act (DMCA) notice, but then you realize the content thief is based outside the United States. Now what do you do? Do U.S. copyright laws extend beyond the country’s borders? Even if they do, how are you going to enforce them from across an ocean?
A reverse scenario is also possible. Maybe you’re the one who lives outside the U.S., and your content has been appropriated by someone in the United States. Can you use a DMCA notice?
The simple answer in both cases is—most likely, but it depends.
It’s basically a formal request made to the person or entity who has—whether purposely or mistakenly—taken your content without your permission, asking that they take it down. If they comply with your DMCA notice, you’re all done. If they don’t, you may have to pursue the matter through legal channels.
The DMCA puts into practice two World Intellectual Property Organization (WIPO) treaties. Copyright, intellectual property, and content theft aren’t new concepts created by the proliferation of the Internet. They’ve been issues since humans learned to write. However, it is only fairly recently that national organizations and governments decided to take action.
Created in 1967, by a convention that took place in Stockholm, Sweden, part of the WIPO’s stated purpose is “…to encourage creative activity, to promote the protection of intellectual property throughout the world…” With the advent of the publicly accessible Internet, the WIPO’s purpose has become even more important.
As of 2013, 186 of the 193 United Nations members are also members of the WIPO, which is headquartered in Geneva, Switzerland. It may be easier to understand the WIPO’s pervasiveness and scope by noting which states are not members: Federated States of Micronesia; Solomon Islands; Marshall Islands; Palau; Nauru; Timor-Leste; South Sudan; Tuvalu; and Palestine maintains observer status. The organization administers roughly 25 international treaties, including the ones implemented by the DMCA.
It’s important to understand the WIPO’s existence and purpose, and the fact that so many countries are members because this is what’s going to help you if your content is ever stolen by someone, whether you’re the one in the U.S. or not.
The key to whether or not a DMCA notice will work anywhere outside the U.S. Depends on two things—where you’re located, and where the site that stole your content is hosted.
If You’re in the United States…
…and the site where your content has appeared without your permission is hosted in any of the WIPO member countries, you can confidently issue a DMCA takedown notice, and expect the site’s owner to comply. Of course, DMCA notices are not guarantees of cooperation, and someone who’s in, say, Hungary may not feel they need to comply with a DMCA issued by someone in the U.S.
If this occurs, you do still have legal recourse, although the international aspect of the case may make things a bit more complicated, not to mention expensive.
If the site where your content has been published is hosted in a country that is not a member of the WIPO, you may have a bit of a difficult time getting it removed. You can reach out to the site owner yourself, but if you don’t get a response or compliance, you may want to consult an attorney.
If You’re Outside the United States…
…and someone in the U.S. has published your copyright-protected content on their website, you can also issue a DMCA notice, and expect full compliance. Again, there’s no guarantee of that, and you may have to pursue legal action.
Before you issue a DMCA notice yourself, though, check the rules where you live. They may vary from country to country.
Use a DMCA Service
If the thought of issuing a DMCA takedown notice in your own country is initimidating enough without the complications of turning it into an international incident, consider using a DMCA service. They can handle all the paperwork and headaches for you, and guide you through the entire process.
Usually, in addition to international treaties set up for intellectual property issues, DMCA services may work with counterpart services in other countries, which can expedite the process.
Intellectual Property Tips
- You don’t have to register a copyright on your content for it to be protected. You can, and it may make it easier to prove it’s yours if a violation becomes a nasty fight. But it’s not mandatory.
- Make sure you understand fair use, and that your content does not fall under those standards before you take any action.
- Try contacting the offending site’s owner yourself first. It may very well be that they’re unaware the content they published belongs to you. In fact, consider this scenario: You find your content on Site A. You reach out to them, tell them the content is yours, and ask them to remove it. Site A responds, apologizes, says they’ve removed the content, and tells you they didn’t realize it belonged to you because they found it on Site B. You hadn’t seen your content on Site B, and didn’t even know it existed—but now you do. And it looks like Site B was the original pilferer of your content. By giving Site A a chance to respond first, you discovered another place your content was published without your permission, and can now take the same steps to have it taken down.
Finding your content published on another site without your permission is no picnic. But at least now you know that if and when it happens, and the offending site is not located in the same country that you are, you still have recourse and can protect your intellectual property.
Help I Got a DMCA Notice…Now What?
It would be bad enough to wake up one morning and discover someone had stolen some of your online content and published it on their own site without your permission. But what if you were the one doing the stealing? Or at least, being accused of stealing? What then?
If you ever receive a Digital Millennium Copyright Act (DMCA) Notice, dealing with it promptly and calmly is the only way to keep the situation from getting worse.
So what do you do if you receive one?
Yes, a DMCA notice is essentially an accusation of theft, but no one is going to show up at your door with handcuffs, so just take a deep breath and remain calm. Then ask yourself a question:
Did you steal someone’s content?
If the answer is yes, comply with the DMCA notice immediately, and then take it as a lesson you should have already known—stealing is wrong, and you shouldn’t do it.
With the way the Internet works, and with as many tools as are available for people to monitor their content and be alerted if it appears anywhere but on their own site, stealing content is just a DMCA notice waiting to happen. You will eventually get caught. So just do everyone, especially yourself, a favor and create your own content.
Remove the Content
Now let’s give the benefit of the doubt, and assume that you didn’t mean to steal someone else’s content. Maybe you didn’t know it was copyrighted, or you didn’t understand how copyright works. Maybe you mistakenly thought the content was available for republication and sharing. Maybe someone gave you permission to republish, but you didn’t realize the person who gave you that permission wasn’t actually the original creator of that content, and permission wasn’t theirs to give.
Or maybe, just maybe, someone is pulling a fast one and claiming ownership to content that isn’t really theirs. If a few years spent on the Internet has taught you anything, it should be to take everything you see there with a grain of salt until you can confirm its veracity through authoritative means.
Even if it was an accident, that won’t matter until the situation can be resolved, and until that happens, you need to remove the content. Immediately.
Yes, even if you believe you didn’t steal it, you must remove it. Until you can confirm ownership and get the situation settled, removing the content in question will protect you from any further action from either the person claiming to own the content, or from your Internet Service Provider (ISP).
If you receive a DMCA notice, and you really don’t believe you stole content, try to confirm ownership of the content in question.
It’s highly likely that anyone who issues a DMCA notice to you will also issue that notice to your ISP. Upon receiving that notice, your ISP is required by law to notify you that they’ve received it, and to provide you with a copy of it. The notice should contain some important information:
- contact information for the complainant
- information about the works in question
- information about the original works
If you find the information about the original content is accurate, and it really was published elsewhere before you put it on your site, you’ve already removed the content so all that’s left is to notify your ISP that it has been removed to avoid having your service suspended.
Some ISPs may go so far as to suspend service upon receipt of a DMCA notice, and before they provide you with a copy of it. If this happens, the same procedure applies—remove the content, and then notify the ISP of its removal in order to have your service reinstated.
Contact the Complainant
If the DMCA notice is wrong—and it does happen from time to time—and you either posted the content without realizing it was copyrighted, or the content really is yours, you can try contacting the complainant and explaining the situation. It may truly just be a misunderstanding, and the complainant has the ability to retract the DMCA notice.
Issue a Counter-Notice
However, if the complainant responds badly, or if it seems it won’t be possible to work things out reasonably, you have the ability to file a counter-notice. In order to be valid, the counter-notice must:
- be written.
- contain your signature.
- identify the content you removed, and where it appeared before removal.
- contain a statement of good faith, made under penatly of perjury, that you believe the content in question was published and/or removed as the result of an error or misunderstanding.
- contain your contact information, including your name, address, phone number.
- include a statement that you consent to the jurisdiction of the Federal District Court for your judicial district.
Upon receiving your counter-notice, the complainant then has two options—retract their notice, or file a copyright lawsuit. Hope for the first option, but be prepared for the second. The possibility of a lawsuit is all the more reason to make sure you have all your ducks in a row before you file a counter-notice. Try to confirm content ownership on your own first. Issuing a counter-notice out of anger or spite may just lead you to even more trouble, not to mention legal fees.
Get Legal Help
If the situation is particularly sticky, though, or you just don’t feel comfortable tackling it yourself, you may want to consider contacting a copyright lawyer and letting them handle it for you.
It shouldn’t bear repeating, but it does—don’t steal content. Write your own. If you can’t or don’t want to write your own, hire a copywriter. If you can’t or don’t want to hire a copywriter, then consider another line of work because stealing other people’s content for your website is not a sustainable business model. And did we mention it’s just wrong?
But if you’re innocent and you receive a DMCA notice, just know that you have recourse, and that while it may be uncomfortable or frustrating to get it all sorted out, you eventually will, and then can go back to the business of creating original, quality content, and helping to make the Internet a better, more informative—and more honest—place.