A Sword and a Shield
How to Make the DMCA Work for You (Without a Lawyer!)
This post is guest authored by Thomas Tassin, a rising third-year law student at SMU Dedman School of Law. Thomas is one of our summer legal interns here at Maddrey PLLC, and we are happy to present this article. As always, I have reviewed this post for its legal and factual conclusions – Tom Maddrey
Artists and internet trolls alike are currently fussing about one particular area of copyright law: the Digital Millennium Copyright Act (“DMCA”). The law, passed in 1998, shields internet service providers (“ISPs”) from liability for simply hosting content that their users upload. More importantly, however, the DMCA provides creators with a means to notify ISPs (like Google or Facebook) of infringing content and remove it—all without contacting a lawyer or forking over any money.
That all sounds good … so where’s the controversy?
The controversy stems from abuses of the takedown system, which allows bad actors to effectively paralyze content creators by flooding them with copyright claims. But despite the negative press, the DMCA still offers an extremely valuable tool for artists and other copyright holders.
This post will explain how content creators can properly use the DMCA to protect their works in an otherwise-hostile online environment. It will also explain what artists can do if they receive a DMCA takedown notice, whether legitimate or not.
What is the DMCA?
The DMCA was passed in 1998 and signed into law by Bill Clinton. The purpose of the law is simple and remains relevant today: to protect copyright holders against increasing threats from the internet and other new technologies. Generally speaking, the DMCA covers three distinct parties: (1) original content creators, (2) those who supposedly infringe that content, and (3) the sites and services that host the content.
Perhaps the most important result of the DMCA was the creation of “safe harbors” for ISPs (the hosts). These “safe harbors” mean that service providers like Google, Facebook, and Twitter can’t be liable when their users post infringing content. Rather, the ISP must only act “expeditiously” to remove or disable access to the infringing content. It is this requirement that has led to the controversy surrounding excessive takedowns and “DMCA abuse.”
But not all takedowns are bogus. Most, in fact, are legitimate and even necessary to preserve the same level of artistic protection that the Constitution envisioned. Therefore, artists should know how and when to file a DMCA notice.
Filing a Takedown Notice
If you find your content on a stranger’s account, you actually have several options (to learn more about the other options, check out our previous blog post titled
“So You’ve Been Infringed: 5 Things You Can Do When Your Photograph Is Stolen Online“. But if you simply want the infringing content taken down, your easiest and fastest option is a DMCA takedown notice.
Ok, so how do I do that?
Most popular sites and social media platforms provide an online form (usually somewhere in the bowels of their “Help” pages) where users can create and file a DMCA takedown notice. If, however, a site doesn’t provide its own form, you can still send a takedown notice directly to the ISP’s designated agent (another requirement of the DMCA). To find a directory of DMCA agents, click here.
What goes into a takedown notice?
Whether you submit it through the online form or snail-mail it to the designated agent, a proper takedown notice requires the following:
- The URL of the infringing content and other identifying information (like the title of the infringing post)
- The URL or location of your original content
- Your contact information (full name, address, email, and phone number)
- Three statements: (1) that you’re authorized to send the notice, (2) that you’re sending it in good faith, and (3) that it’s accurate
- Your signature (electronic or physical)
After sending a takedown notice with the above information, the ISP will (usually) act promptly to remove the infringing content, generally within ten days or so.
Fair Use and Other Considerations
Before sending a DMCA takedown notice, you should first make sure it’s the correct move and also know what to expect after you click send.
- Confirm that fair use does not apply: First and foremost, you should ensure that the other party’s use of your work does not qualify as a “fair” one. Under US law, internet users can borrow copyrighted content if they use it for the purposes of education, commentary, parody, or the like. Fair use is very a murky area of the law, so consider doing a little research on it before filing a takedown notice, might I suggest starting with our blog post on fair use? Click here!
- Don’t expect a payday: A takedown notice does not entitle you to any compensation. It simply compels the ISP to remove the infringing content. (Note: If it’s money you’re after, you should consider contacting an attorney to draft and send a demand letter.)
- It may be just the beginning: A takedown notice isn’t always the final nail in the coffin for the infringer. The infringing party can still turn around and file what’s called a “counter notice.” By sending a counter notice, the other party formally denies any wrongdoing and asks the ISP to restore the content. Importantly, a counter notice also requires that the infringing party accept service of process should a lawsuit ensue. In other words, they can’t run and hide if you elect to file a lawsuit.
What if You Receive a DMCA Notice?
Copycats and catfishers are rampant these days. There may be an “artist” out there trying to pass off your work as her own, and she’s willing to go so far as to file a DMCA notice against you. Or, maybe your photograph of a street scene includes a tiny portion of a local artist’s mural, and now that artist wants to take your photo down. What do you do?
As mentioned previously, you can file a counter notice, but doing so requires you to consent to the possibility of legal action. While there’s a strong chance that the person who filed the takedown notice will simply drop it, they could file a lawsuit, which means you may have to hire an attorney (even if you’re in the right).
On the other hand, you could simply comply with the takedown notice (and maybe host the content on a different service). Note that you probably shouldn’t re-upload the content to the same site, however, as multiple DMCA notices in a short span could lead to a permanent ban on your account.
Finally, if you really want to get serious, you could contact an attorney to file what’s called a “declaratory judgment.” In a declaratory judgment, you formally ask a court to weigh the evidence and determine whether an infringement occurred. This option is costly and likely only makes sense in extreme cases.
Whether they like it or not, artists are businesspeople. And as businesspeople, they have every reason to leverage the internet to market themselves and sell their works. But by putting themselves out there, they also run the risk that others find their work and infringe it. To combat this challenge, artists should understand how the law can work for them.
A DMCA takedown notice is an excellent tool for artists to identify and remove infringing content online. The recent fuss surrounding “DMCA abuse” ultimately has no bearing on honest artists who simply want to protect their hard work. It’s our hope that this post empowers these artists to go forth and create a better, more artist-friendly internet by putting the DMCA to work for them.