In part 2 of our 3 part “Tools to Enforce Your Copyright” series, we’re going to take a brief look at the DMCA takedown notice, and how you can use it to enforce your rights.
The DMCA Takedown Notice
A common alternative to sending a Cease and Desist Letter is sending a DMCA takedown notice, especially if your work is online only, if there are very little profits made by the copyright infringer, or if the infringer resides outside of the United States. A DMCA takedown notice is a request to remove your work from a website that’s infringing your copyright. More DMCA basics are found in our Photographer’s Guide to Copyright Basics.
A DMCA Takedown Notice requires the following steps:
- Find the ISP (internet service provider) of the website where your work is displayed without your permission. Search on WHOIS to find the ISP and site owner;
- Draft your takedown notice and letter. Your DMCA takedown notice should include an identification of the work infringed; an identification of the material or website infringing your work; should include your contact information; request the relief you are seeking; include several required statements, such as a statement that you have “A good faith belief that the use of the material in the manner complained of is not authorized” and “Under penalty of perjury, the information contained in this notification is accurate.”
- The notice should be signed, and state that you are the copyright owner or the authorized agent of the copyright owner, as applicable;
- Send the DMCA takedown notice to the internet service provider.
The Problems with DMCA Takedown Notices
DMCA takedown notices are not cure-alls for website-based copyright infringement claims, and there are some significant drawbacks to sending a DMCA Takedown Notice. Keep in mind that the DMCA takedown notice won’t prevent the infringer from simply posting the infringing work again under a different title or on a different website. This frequently happens on sites like eBay and Amazon. Once taken down, the infringers simply upload the photo again to a different page, and change the file name. In addition, an internet service provider has to restore the infringing work back to a website if the infringer challenges the validity of the DMCA takedown notice and if no copyright infringement lawsuit is filed by you within 14 days. So, fairly often, DMCA takedown notices are just plain ineffective.
The Tables Can Easily Be Turned
Before sending a DMCA takedown notice, you have a responsibility to ensure that the work is actually and truly an infringement of your copyright. If your copyright infringement claim is found to be ungrounded, the alleged infringer can sue YOU for lost profits and damages.
So before you send a DMCA takedown notice, you must determine:
- that it is, in fact, your work;
- that use of your work in that manner does not fall under one of the fair use exceptions to the Copyright Act;
- that the infringer did not have permission to use your work (i.e. by licensing it);
- and that it is truly a case of copyright infringement, not trademark infringement or something else.
The DMCA process is not the proper mechanism for handling trademark infringement claims and for getting infringing trademarks off the internet. The DMCA is for copyright infringement only. Again, you can be sued for damages by the alleged infringer if you mistakenly file a DMCA takedown notice for trademark infringement.
DMCA Notices can be a quick fix in certain situations, as long as you understand that it’s probably not going to be the best fix or a permanent fix. A Cease and Desist Letter or filing a lawsuit will typically be much more effective.