DMCA Takedown - Part 1

Apr 15, 2019

DMCA

You're scrolling through Instagram and suddenly you see your own artwork looking back at you. "Hey, wait!" you think, "I didn't give this person permission to post my work!" You DM the culprit, but they don't respond, and you think, "Great, now I'm screwed. People are just free to rip off my work." Not so fast - there's still something you can do! Let me tell you about something called a DMCA takedown notice.

First, some general things you need to know about DMCA (Digital Millennium Copyright Act) Takedowns.

They are applicable when:

  1. You own the copyright or have the right to assert infringement of a copyright you license.
  2. The alleged infringement is not covered by an exception such as Fair Use or free speech laws. You must have good faith belief that alleged infringing use is not covered by any law which would permit its use.
  3. The content is capable of being infringed online. In other words, the work must be something in a digital format.

The DMCA is a sort of safe harbor for website hosts from being sued for copyright infringement if:

  1. The infringement is posted by one of their users, and
  2. If they follow a specific procedure to remove the material after getting notice of the infringement

The website hosts must appoint a designated agent to receive notifications of claimed copyright infringement. To determine who the designated agent is:

  1. First, look on the site itself. Even if it's posted on the site, it may be difficult to find. Often this information is included under the "Legal' section, "Copyright Policy' section, or within the "Terms of Services' section at the bottom of the home page.
  2. The US Copyright Office also keeps a digital directory of designated agents for service of DMCA Takedown notices at https://dmca.copyright.gov/osp/.There, you can enter the URL and likely find the designated agent that way. Click on the Service Provider's name to see their DMCA designated agent

By law, the DMCA takedown notice must contain the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or intellectual property right that has been allegedly infringed upon;
  2. Identification in sufficient detail of the material being infringed upon;
  3. Identification of the material that is claimed to be infringing upon the intellectual property. Include information regarding the location of the infringing material with sufficient detail so that the web host is capable of finding and verifying its existence;
  4. Contact information about the notifier including the name of the intellectual property owner, the name and title of the person contacting the web host on the owner's behalf, the address, telephone number and, if available, e-mail address;
  5. A statement that the notifier has a good faith belief that the material is not authorized by the intellectual property or copyright owner, its agent, or the law; and
  6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the intellectual property or copyright owner.

In a couple weeks, we'll continue this series by looking at specific instructions for takedowns on Instagram.


Pfeiffer Law Corp limits its practice to entertainment law.

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