Responding to Digital Millennium Copyright Act (DMCA) Notices
The Digital Millennium Copyright Act, or DMCA, is an extraordinarily influential law that was passed in 1998 to protect the rights of copyright holders from internet-based infringement. The following article briefly examines one of the most commonly-used tools authorized by the DMCA—the service of DMCA takedown notices—and how you can respond to such notices if you are not infringing on someone’s copyright.
Background on the DMCA
The DMCA is a comprehensive copyright law designed to balance the rights of both internet service providers (including website owners who host user material on forums, message boards, etc., search engines, caching services, and providers who transmit material) and the owners of copyrighted works that can be distributed over the internet. The law protects internet service providers from liability for copyright infringement if, among other things, they take appropriate steps in response to receiving what is called a DMCA takedown notice from a copyright holder informing them that someone is using their services to infringe on the copyright holder’s intellectual property. Internet service providers must also create and institute a policy that provides for terminating users of their services who repeatedly violate copyright laws. The DMCA only protects internet service providers who follow these steps and does not protect individual internet-users who violate copyright laws.
What to Do if Your Receive a DMCA Notice
If your material has been removed from a website due to a DMCA takedown notice, you have several potential responses. Your first response should be to verify that you are not actually infringing on someone else’s copyright. Examine any information you have related to the DMCA takedown notice, including any information regarding the underlying copyright registration that led to the notice. If you have unknowingly posted material that does infringe on a valid copyright, you may be facing significant legal penalties, and it may be in your best interest to cease any infringing activity immediately.
Filing a Counter-Notification under the DMCA
If you review the DMCA takedown information and determine that you have not infringed on a valid copyright (please note that it may be in your best interest to consult a qualified intellectual property attorney before making that determination), you have the option of responding to the takedown notice by filing what is called a DMCA counter-notice. A counter-notice can be a useful tool if the material that you posted, and that resulted in the original DMCA takedown notice, is not actually protected by a copyright. A counter-notice can also be successful if the material in question is protected by a copyright but the person who served the original notice is not the actual owner of that copyright. Additionally, a counter-notice may be an advisable option if the content you posted is protected by the fair use doctrine or similar legal doctrines that protect your content.
If your attorney determines that serving a DMCA counter-notice might be advisable based on the unique facts of your situation, they will prepare a notice that complies with the requirements of the DMCA and serve the notice on the internet service provider. It is important that you meet each of the specific requirements of this law in order for your counter-notice to be effective.
Once you have served this counter-notice, the internet service provider may restore the content that they originally took down unless the person who filed the original take-down notice files further proceedings in court within a certain period of time.
Potential Litigation Related to DMCA Notices
You should be aware that filing a counter-notice or otherwise contesting DMCA takedown notice may result in litigation, which can be expensive and time-consuming. It may be in your best interest to consult a qualified intellectual property attorney to receive legal advice related to your copyright dispute prior to sending a counter-notice or after you have received a DMCA takedown request.
If you have received a DMCA take-down notice, but you do not believe you have infringed on the copyright of another party, our team of knowledgeable and experienced copyright attorneys at The Myers Law Group are ready to help you respond. Contact us today at (949) 825-5590.