Copyright, and copyright infringement, has existed for a really long time. But, the internet came along and changed everything. The internet made it so much easier to 1) create copyrighted work and 2) to steal that copyrighted work. So, in 1996, DMCA was enacted to, among other things, protect work that was created, or distributed, digitally.
DMCA stands for Digital Millennium Copyright Act. One section of the law allows for a takedown of copyrighted material. This is done by contacting the ISP, search engine, host, or site owner/manager and telling them to remove it. A lot of people call this “doing a DMCA”. Basically what it does is allows for (fairly) simple process to get your infringed material removed from wherever it is posted. So, if you find one of your articles on Cindy Blogger’s website, claiming it as her own, you can “do a DMCA” and have it removed. Your work does NOT have to be registered before you can do a DMCA takedown. You can find out if your work is copyrighted in this post.
Though it’s not always possible, or advisable, you can start by contacting the person or company directly and asking them to remove your copyrighted material. They may or may not, but even though a DMCA takedown isn’t hard, it’s much easier to send an email saying “hey, I noticed you have my copyrighted article on your blog and I want you to take it down”.
Assuming you’ve tried contacting the infringer directly (or you’ve decided you don’t want to), you can start the DMCA takedown process. This is something you can do yourself and you probably don’t need an attorney.
1. Copy the infringed material
You’ll need to show the work being used, so print it out or take a screenshot.
2. Identify who you need to contact to have the content removed
To have your copyrighted material removed from the infringing site, you need to send a DMCA takedown notice to the website host. If this information is not apparent from the infringers site (it’s usually not), you can search https://www.whois.net/ to find out the website host. Search for the website and then look at “name server” to see who the host is.
Once you know the host, you need to find out who exactly to send the DMCA takedown notice to. Many companies have forms on their website to file your takedown notice, if they do, that’s what you should use because 1) it’s easier and 2) that’s the company’s preferred way to be contacted and your request may be honored more quickly. As an example, you can see Google’s takedown procedure here .
If you don’t see a way to submit your notice on the host’s website, then you can search here–https://dmca.copyright.gov/osp/ to find the designated agent.
3. Make sure there really is a copyright infringement
Before you send your DMCA takedown notice, make sure the use of your work doesn’t qualify as Fair Use. You’ve probably heard of Fair Use. It basically means to some extent you can use other people’s work. You are allowed to quote pretty much anything you want as long as you attribute it to the source. But, you can’t copy large amounts of anyone’s work even if you attribute it. The legal standard used to be up to 10% was fair use, but more recently courts have been looking more at how much was made available to the public.
To decide whether someone’s use of your work falls under the Fair Use exception it depends on four factors:
(1) the purpose & character—is it being used to teach or did they copy and sell it
(2) nature of the work—whether work is creative or factual
(3) how much was used—did they use a short quote or the whole piece
(4) effect on potential market—is someone likely to buy from the infringer and not you
4. Draft & send the DMCA takedown notice
For the takedown notice to be valid it must:
(1) Be in writing (physically or electronically);
(2) Be signed by the copyright owner (physically or electronically);
(3) Identify the original copyrighted work;
(4) Identify the material infringing on the original copyrighted work;
(5) Include contact information for the copyright owner;
(6) Include a statement that the copyright owner (or their agent) “has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(7) Include a statement that the notice is accurate, and under penalty of perjury, that you have the authority to act on behalf of the copyright owner.
Once all of these steps are complete, the website host should remove the infringed work within a reasonable time.
After removing the work, the website host will contact the infringer to let them know the content has been removed. The infringer then has the option to file a Counter-Notice, which basically says they claim copyright over the work. Once a counter notice is filed, the website host has 10-14 days to put the content back on the site, unless copyright infringement suit is filed in court.
A counter notice has to be written and include:
- Signed by the subscriber (physically or electronically);
- Identification of the material that was removed;
- A statement under penalty of perjury that says the subscriber has a good faith belief the content was removed by mistake or misidentification of the material;
- Contact information of the subscriber; and
- A statement that the subscriber consents to the Federal District Court in their jurisdiction.
If a valid counter notice is received by the website host, then you have to file suit in federal court for copyright infringement. If you decide to go that route, I highly suggest finding an attorney who practices in your jurisdiction that is familiar with copyright infringement.
Disclaimer: This site, and all information contained herein or through communication with me, is intended as legal information only. I am an attorney, but I am not your attorney, so nothing on this site, nor any communication with me, shall create an attorney-client relationship. I am not liable for damages or losses based on any action taken, or inaction, based on the information contained on this site. All areas of the law are fact specific and there is no substitute for legal advice from an attorney licensed in your jurisdiction who is familiar with the specific facts and circumstances of your situation.