DMCA takedown notice – what to consider

How sad is it when you work for months on something really great and after it is finally published, the other website steals what belongs to you? Modern artists – software developers, representatives of the music, gaming, publishing and film industries, all copyright holders who have posted their works on the Internet – might know.

It hurts not only in the “I`ve-done-it” way, but in finance way, too. When the work is republished without author`s consent, it is no longer as unique as it was before, which instantly influences its value.

Is there a solution? Indeed, there is. It is provided by the United States Digital Millennium Copyright Act (or DMCA).

The DMCA offers a mechanism for protecting copyright and related rights on the Internet whereby the copyright holder can request the removal of content or restrict access to it (“takedown notice”) if there is a suspicion of violation of legal rights. 

Important notice: DMCA establishes the conditions for release of a provider from liability to the copyright holder and to the user of the service. 

So, in case the online service provider, on which the infringing materials are posted, locates in the United States, the country of the copyright holder does not matter at all. The owner can send a takedown notice in accordance with the DMCA to the US provider`s DMCA agent, who has to remove the controversial content as soon as a notification has been received. 

Important notice: Information about the DMCA agent of a particular service provider should be posted on its website, as well as in the list of registered agents on website of the US Copyright Office. Content that violates rights and the web pages containing it can be removed using takedown notice only from services and search engines registered in the USA.

After receiving a takedown notice, the online service provider deletes the content with a backup or restricts access to it, in other words – removes the URL from the pages of search results, notifying Internet users that access was restricted due to copyright infringement under the DMCA. 

On the other hand, the person whose access to the materials was restricted has the right to file a counter notice, which is also issued under DMCA and submitted to the DMCA agent. If a counter notification is filed, the service provider has to restore the deleted materials or access to the web page 10-14 working days after receiving the counter notice. 

The service provider shall not be responsible for the restoration of deleted content based on the counter notification, even if this content subsequently confirmed illegal. Unlike this, the user who posted the content shall be responsible for both copyright infringement (if any) and for false information in the counter notice. 

Important notice: This may happen even if the user deletes the illegally used content – bona fide complete removal does not exempt from liability for copyright infringement in case of a lawsuit.

Information a takedown notice shall include:

  • sufficient contact information for the applicant;
  • signature of the copyright holder or his authorized representative;
  • proper identification of the work, the rights to which are allegedly violated;
  • information on the location of the content in the provider’s system;
  • assurance that ‘the applicant is in good faith convinced of the lack of permission of the copyright holder, his agent or the law to use the content in a manner carried out by the violator’, and that the notice of elimination is drawn up correctly;
  • assurance that the applicant has the authority to act in the interests of the owner of the exclusive right that is allegedly violated.

Information a counter notice shall include:

  • physical or electronic signature of the user;
  • identification of lost content and an indication of its location before deletion;
  • assurance that the user is conscientiously convinced of the removal (blocking) of the content due to an error or incorrect identification;
  • the name, address and telephone number of the user, as well as his consent to submit to the jurisdiction of the Federal District Court of the county in which the user’s address (if he lives in the USA) or the provider’s address (if the user lives outside the USA), and consent to accept subpoenas from the person who filed the notice of rectification, or his agent.

A takedown notice may not be a simple thing to cope with. In order to avoid any risks and mistakes, we recommend consulting a lawyer in each unique situation.

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