DMCA Takedowns…ugh, right? If you’ve never been on the receiving end of one, it tends to prompt you to look up copyright law and figure out what the hell just happened. Since most people on the takedown side tend to know what the DMCA is all about and are actively monitoring their works online, this article is going to be aimed more at those unfamiliar with the DMCA.

DMCA takedowns happen in games as well as the more expected film/video realm–especially on the app store. As such, it’s important to know what a takedown means, what rights and options you have, and what risks are involved in getting your content back up. I’ve made this article very general, such as using phrases like ‘creator’ instead of developer, but the law is applied the same, regardless of your title or industry.

Digital Millennium Copyright Act.

Fun Fact: despite its name, the DMCA was signed into law in 1998 (e.g. not in the new millennium) by Bill Clinton. Then again, it’s scary to think that much of our digital data privacy law was written in a time when you couldn’t open up more than one file at a time on a computer.

What Does it Do?

Boiled down, the DMCA is one of the several means of enforcing copyright law and its protections. It allows copyright owners to notify a website hosting infringing work (aka someone posted your stuff without your permission) and the website (service provider) has to immediately (within specified time frames) take down the infringing content.  There’s a bit more that goes into it, but that’s the bare bones. Also, if you get content taken down, you usually will receive notice of getting a ‘strike’ on your account—this goes to the ‘safe harbor’ requirements discussed below, as stopping repeat infringement is a requirement for businesses to keep their protections.

Most commonly known are the benefits the DMCA has with regard to its safe harbor provisions (Title II/Section 512 for you law nerds) for service providers. It’s the reason why websites like YouTube, Vimeo, and Facebook are still around instead of being dragged down into court by every one of its users for copyright infringement.

The DMCA’s safe harbor provisions allow websites like YouTube and Facebook to stay ‘safe’ by not holding the companies responsible for their users posting infringing content, so long as those companies follow the rules of the DMCA (such as taking it down, notifying users, keeping track and having procedures to deal with repeat infringers).

What Does it Mean For Me as a Creator?

If you’re a creator who has published your work, the DMCA provides you a (relatively) easy method of policing illegal use of your work by others. I say ‘relatively easy’ because when a procedure is entirely automated to the point where there may not even be a human being to deal with odd situations, things can get…less easy.

If a website allows users to comment, submit content, or otherwise add anything to the website, it’s generally a VERY good idea for that website provider to have a DMCA policy (it’s also often called a ‘copyright policy’). This is usually found in the form of a link at the bottom of the website’s page, and a policy like that is supposed to have certain information available to users about who and how to contact the service provider for a DMCA take down.

Thus, if you find that a website is hosting your work illegally, you should be able to go to the website and find a copyright policy link to report the illegal use of the content, in which case the website should take it down. If the site doesn’t have one, then you typically have to find the person hosting the website by going to www.whois.com and looking up the domain to see who the agent is, and then send them a takedown request. More on that in the next section.

Note 2 Things:

 

1. I’ve said ‘illegally’ using your work twice now.

I really mean the ‘illegal’ part—if you’re not familiar with fair use, check out my article about it, because fair use is a defense to DMCA takedowns. That is, fair use (when applied properly) is a defense to copyright infringement in general, and, thus, no one would generally have a legal have a right to taking down your work via the DMCA process.

2. When you file a request for a DMCA takedown, you do so under penalty of perjury.

This means that there could be serious legal repercussions for lying about owning the copyright to a work and having the offending website take it down.

How Do I Take Down Legitimately Infringing Work?

Since I’m not giving you legal advice, I’ve instead provided some links that discuss this particular issue.

There are no shortage of websites which tell you about the takedown process—many of whom even use pictures to make the process that much easier. Chilling Effects (.org) has a lot of great information about DMCA notices (go to: topics—copyright—DMCA notices), and they also have a database of previously submitted takedown notices for you to review (just search counter notice or counter notification).

The National Press Photographers Association also has a fabulous how-to step-by-step procedure for going through with a takedown notice—and you’ll find that they also address the fair use issue, as well as the counter-notice issues that I’ll discuss below. That site is one of the clearest I’ve read on the topic, so I don’t think there’s any need to reinvent the wheel here.

If I Run A Site That Allows User-Generated Content, What Should I Be Worried About?

 

If you want to host a website with content created by users, you will run the risk that your users will post infringing stuff on your site.

This can be in the form of them posting pictures, lyrics, using user names that are trademarks (not a DMCA issue, since that’s trademark, but still something to consider prohibiting in your terms of use), copying articles or other things from other people or websites…basically just a lot of copying. Users do it all the time, either because they’re lazy, mean, oblivious…who knows?

Thus, assuming you have a strong terms of use in place (strongly recommended to curb the antics of your users and protect yourself from their misbehavior), to get safe harbor protection under the DMCA, you’ll need to be an actual ‘good guy’. But, you ask, what does that mean?

1. That means you can’t know about, or receive, a benefit (financial, usually) from having infringing activity on your site.

2. You have to register an agent with the copyright office. Note that this list is public. This means that anyone can search up your agent and the find the associated address and phone number for that agent—think twice before registering any personal information like home phone/address. It appears that most agents on the list use business-related contact information.

You may want to consider creating/registering an email address that ONLY deals with copyright claims (e.g. Google has: dmca-agent@google.com), rather than having it go to a general ‘contact’ or ‘info’ email address used by your company. I assume (again, not legal advice) that would probably reduce the likelihood that you’ll miss a DMCA takedown notification (which could lose you your safe harbor protections if you don’t follow protocol), and just make things easier for you all around.

Here’s an example of a DMCA policy: http://gopop.tv/dmca/

DMCA Takedown Abuse

“With great power comes great responsibility.”

Unfortunately, there is a (not undeserved) reputation amongst large corporations for abusing the takedown system. How does that occur? Well, once sites like YouTube enlisted the use of ContentID systems, which check for visual fingerprints on registered works, many companies were able to send out mass-mailings of takedown notices based on the uploading of copies of their works. What they often DIDN’T do was take fair use into account.

Take, for example, Jonathan McIntosh’s experience with his Buffy vs. Edward video—which the U.S. Copyright Office itself stated was a perfect example of fair use. He mashed up clips from several episodes/seasons of Buffy the Vampire Slayer with that of Twilight (and a little from Harry Potter, although WB didn’t have an issue with it) to make a commentary on the cultural differences of girl power and the romanticism of stalking. Lions Gate (then owner of the Twilight films) took it down several times before actually having a human respond and review the work for its fair use potential.

What can you do about it? Get legal help if you feel like your rights are being run over. Unfortunately it’s a fact of life, right now, and until some edits are made to the code or case law does more than merely slap those companies on the wrist, things aren’t likely to change any time soon.

Counter Notifications

A counter-notice/notification is a document you can file (usually electronically) if your content has been taken down but you believe it’s been done so improperly (e.g. you actually are the proper owner of the work, or it’s legitimate fair use).

Myth: If I just counter-notice, then I get my content back up online and “they” can’t do anything about it—it’s my word against theirs. Worst case? They just take it down again and we go round-and-round when I re-counter-notice.

Nooope. Just as you file a takedown under penalty of perjury, so too do you when you file a counter-notification. Also, there are other significant legal risks to filing a counter-notification—the biggest of them being that if you are not a U.S. citizen, you are agreeing to submit to the jurisdiction of that service provider (e.g. you’ll travel to wherever the website’s policy states they are okay with being sued in court).

For example, YouTube’s Counter-Notification instructions state the following requirements in a free-form (e.g. not their fill-in-the-blank online form) counter notice—NOTE #3 & #4:

1. Your contact information

You’ll need to provide the following information that will allow us to contact you regarding your request:

1. Full legal name (a first and last name, not a company name)
2. Email address
3. Physical address
4. Telephone number
5. Identification of the specific URL(s)

Please include the URL(s) of the exact video(s) or we will be unable to reinstate them. The URL should be in the following format: www.youtube.com/watch?v=xxxxxxxxxxx.

Your counter notification must include specific links to the material that has been removed or disabled. General information about the video, such as a channel URL or username, is not adequate.

3. You must agree to and include the following statement:

“I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which YouTube is located [e.g. San Francisco, California], and will accept service of process from the claimant.”  [this means you’d be called into court in California, regardless of where you live]

4. And the following statement:

“I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”

5. Your signature

Complete counter notifications require your physical or electronic signature, or the signature of a representative authorized to act on your behalf, such as an attorney. To satisfy this requirement, you may type your full legal name (a first and last name, not a company name) to act as your signature at the bottom of your request.

Conclusion

So, what results in your sending a counter-notice? You could get your content back up fairly quickly, but also the person who sent the takedown notice has 10 days (I believe) to file a copyright infringement lawsuit against you to keep the content down and finish the dispute in court. This means that, depending on the perserverance of the takedown person, or the size of the company, you are accepting the likely possibility of getting sued very quickly for sending this notice.

As such, when you’re debating whether to file a counter notification, it wouldn’t be a bad idea to thoroughly consider your potential legal defenses in the event that you are sued—which requires talking to a lawyer.

There’s never a guarantee that you’ll win if you are sued as a result from filing a counter notification, nor is it guaranteed that the person will stick to their guns and proceed with a suit (although you’d be a much better person if you’re not willfully breaking the law, here). As such, I’d definitely recommend talking to someone if you’re at all unsure whether you should proceed with a counter notification.