Ask Author Law

How do I send a DMCA takedown notice?

February 3, 2016

Tags: DMCA, ISP, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trademarks

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I found a website that has posted actual copies of my articles without permission. I have heard about something called "Notice and Takedown." How do I do that?

A: The notice and takedown provisions of the DMCA offer copyright owners a way to protect their works online while limiting the liability of ISPs for copyright infringement. Notice and takedown requires you to police the Internet and search for infringing materials. If infringing material is found, you must submit a notification, under penalty of perjury, to the ISP's designated agent. The notification must:

• bear your physical or electronic signature, or that of your agent;
• identify the work that you claim has been infringed, or, if more than one work is infringed on a single web site, a representative list of the works at that site;
• identify the infringing material that is to be removed, and include any information necessary so the ISP can locate the material;
• provide your address, telephone number, and, if available, an email address, so that the ISP can contact you;
• state that you have a good faith belief that use of the material on the web site has not been authorized by you, your agent, or the law; and
• state that the information in the notification is accurate, and under penalty of perjury, that you are the owner of the copyright that has been infringed or that your agent who is filing the notification is authorized to act on your behalf.

If you fail to comply substantially with the statutory requirements, the notification will not be considered by a court in determining whether the ISP has the requisite level of knowledge to support a liability claim.

Upon receiving your notification, the ISP must promptly make a good faith effort to remove the infringing material from its network or disable access to the material. This is called “takedown.” The ISP will not be liable for any action based on the fact that the material was removed. The timely removal or blocking of the infringing material also means that the ISP will not be liable for monetary damages of you file an infringement action in court.

After removing the infringing material, the ISP must take reasonable steps to promptly notify the subscriber that the material has been removed or blocked. If the subscriber responds with a counter notification, the ISP must provide you with a copy of that response and notify you that it will replace the removed material or cease disabling access to it in 10 business days. Unless you notify the ISP’s designated agent that you have filed an action seeking a court order to restrain the subscriber from infringing your work on the ISP’s system or network, the ISP must replace the material within 10 to 14 business days.

The DCMA provides the subscriber to respond to the notice and takedown by issuing a counter notification. The counter notification must:

• bear the physical or electronic signature of the subscriber;
• identify the material that has been removed or blocked and the location at which the material appeared before it was taken down;
• state under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
• provide the subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is in another country, for any judicial district in which the ISP may be found, and that the subscriber will accept service of process from the you or your designated agent.

The DCMA imposes damages, including costs and attorney fees, incurred by the alleged infringer, the copyright owner, or the ISP against any party who knowingly misrepresents material facts in either the notification or the counter notification.