Has Your Content Been Stolen? A Lawyer’s Guide To Defending Your Online Content

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A Guide to the DMCA and Takedown Notices: What They Mean and When to File One

As an attorney who has been advising websites, affiliates, and networks across the country for a decade, I know many Internet marketers see the law as an obstacle. What do I have to disclose? What am I allowed to say in an ad? How quickly do I have to respond to an email opt-out? And so on.

Fortunately, at least in one area, the law is on your side. If you create content, and someone steals it and posts it on another site without your permission, the law gives you certain rights. Knowing those rights is half the battle.

A Guide to the DMCA and Takedown Notices:  What They Mean and When to File One

The same scenario plays out over and over again as the demand for original content gets increasingly competitive. Let’s use a product review blog as an example.

The blogger buys or borrows a new lawnmower and tests it for two weeks to write a review. He takes pictures of the lawnmower, before and after photos showing the mower’s performance, and then writes a detailed article explaining how the mower is a great buy. He posts the photos and review to his website and the traffic starts flowing in.

After a week, the traffic drops off dramatically. He performs a search to see where his blog is ranked and notices a similar article ranked above his. He clicks on it to see that a lawn care blog copied his entire article and posted it on their site.

Fortunately, our blogger knows his rights under the Digital Millennium Copyright Act, commonly known as the DMCA.

How to Make Use of the DMCA

You have a copyright on the original, creative content that you create (think articles, photos, songs, etc…). For example, as soon as you take a picture, you own the copyright in that picture. Except for certain exceptions, like a limited right of “fair use,” you have the right to control who makes copies and publishes your content.

The DMCA is a federal law that gives content creators a formal process to enforce their rights and protect their content. The process for demanding removal of your content is informally known as a takedown notice. While this procedure technically only applies to those websites that have voluntarily registered under the DMCA, sending the notice is generally the most effective way to protect your content and make them remove the infringing copy.

Most websites that have registered under the DMCA provide their DMCA policy in their terms of service, often located through a link at the bottom of the website. They will designate an agent to receive takedown notices. If they don’t provide you the agent’s name, you can find it on the U.S. Copyright Office’s website. If they are not registered, then you may have to dig to find the best contact to receive your notice.

In order to invoke the DMCA and formally request the website owner remove the infringing copy of your content, you must send a written statement to the website’s DMCA agent that contains the following:

  1. Identification of your original work that you claim has been infringed.
  2. Identification of the material you claim is infringing and needs to be removed, including a description of where it is located.
  3. Your address, telephone number, and, if available, e-mail address, so the copyright agent may contact you about your complaint.
  4. A statement that the above information is accurate.
  5. A statement that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law.
  6. A statement, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation
  7. Your physical or electronic signature.

Once you send the takedown notice to the website’s DMCA agent, the website must quickly remove the infringing material you identified.

However, this is not always the end of the road. The website has a duty to notify the person who posted your infringing content to let them know that you have filed a takedown notice and the content has been removed. The person then has an opportunity to send a counter notice showing they did not violate your rights.

They rarely send a counter notice, but if they do, you may need to file a lawsuit to prevent the website from putting the content back up. You should also be aware that knowingly submitting a false takedown notice can result in you being liable for the website and poster’s attorney fees and any damages incurred as a result of your false request.

So, let’s go back to our lawnmower blog. The original blogger finds out about the infringing blog and wants to send a takedown notice. He knows the requirements for the takedown notice, but he is not sure of a good way to put the notice together.

Writing your own DMCA Notice, Made Easy(ier)

Here is a sample template that is a good starting point for a takedown notice. Please note that this is just a sample, is only for informational purposes, and is not a substitute for legal advice about your particular situation.

Dear (DMCA Agent):

I am an authorized representative for (name of company, or your name). I am contacting you pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), and formally demanding that you remove and disable access to infringing content located on your website.

(I am, or the company is) the creator of certain (generally describe the type of content). You can see the relevant content at (your website). As the creator of this content, (you or your company) owns the exclusive rights to the content under the United States Copyright Act of 1976. This content is being infringed on by your website, (website address for their website).

(My or my company’s) copyrighted content appears on your website at (specific page of the infringing content). I am enclosing a screenshot captured on (date) from (specific page of the infringing content).

(I or my company) have/has not authorized any person or entity to copy or publish this content on your website. By displaying (my or my company’s) content without my/its permission, your website is infringing (my or my company’s) copyright.

I have a good faith belief that the use of (my or my company’s) content on your website is not authorized by the copyright owner, its agent, or the law. The information contained in this letter is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of the exclusive copyright in the infringed content.

You may contact me at (mailing address, telephone number, and email address).

I hereby demand (name of infringing website) immediately remove from its website and disable access to the copyrighted content referenced in this letter by no later than (date seven days from date of the letter).

Please confirm in writing that you have received this communication and describe the actions you have taken in response to this letter.

Respectfully,

(Your signature)

To put this letter in more context, let’s use our lawnmower example again.

Dear (DMCA Agent):

I am an authorized representative for Amazing Product Review Blog, Inc. (“APRB”). I am contacting you pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), and formally demanding that you remove and disable access to infringing content located on your website.

APRB is the creator of a certain blog article and photographs. You can see the relevant content at AmazingProductReviewBlog.com/Lawnmower.html. As the creator of this content, APRB owns the exclusive rights to the content under the United States Copyright Act of 1976. This content is being infringed on by your website, EvilLawnCareBlog.com.

APRB’s copyrighted content appears on your website at EvilLawnCareBlog.com/lawnmower. I am enclosing a screenshot captured on September 1, 2014 from EvilLawnCareBlog.com/lawnmower.

APRB has not authorized any person or entity to copy or publish this content on your website. By displaying APRB’s content without its permission, your website is infringing APRB’s copyright.

I have a good faith belief that the use of APRB’s content on your website is not authorized by the copyright owner, its agent, or the law. The information contained in this letter is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of the exclusive copyright in the infringed content.

You may contact me at (mailing address, telephone number, and email address).

I hereby demand EvilLawnCareBlog.com immediately remove from its website and disable access to the copyrighted content referenced in this letter by no later than September 8, 2014.

Please confirm in writing that you have received this communication and describe the actions you have taken in response to this letter.

Respectfully,

(Your signature)

Once again, while this letter may serve as an example, it is always a good idea to tailor your letter to your particular situation.

The Bottom Line

As a final note, you should be aware that some larger sites have alternative methods for requesting infringing content to be removed. They may have special forms you can submit electronically requesting that they remove your content. This is often the fastest and most efficient way to get your content removed. However, if they never remove the content, you can always send the formal takedown notice under the DMCA.

The bottom line is this: When you create content, you generally control who can and cannot re-post your content. If someone is re-posting your content without your permission, you can send a DMCA takedown notice to require them to take down your content.

While sending a DMCA takedown notice is not a guarantee that they will remove your content, it is often the quickest and most cost-effective way to do so. Unless the website wants to risk being liable for copyright infringement, they should comply with your request and comply with the DMCA.

 

This article is provided for information purposes only and is not legal advice. Always consult an attorney for legal advice about your particular situation.

Image Credits

Featured Image: Mega Pixel via Shutterstock
Post Image: alexskopje via Shutterstock

Troy Meyerson
Troy helps networks, advertisers, publishers, online businesses and other Internet entrepreneurs navigate the complex and ever changing laws and regulations that impact e-commerce businesses. Among other things, Troy’s time is spent on a broad range of Internet law issues including drafting and negotiating contracts, advising on issues of compliance with regulatory guidelines, counseling clients regarding online trademark and infringement issues, and representing clients on issues of protection of intellectual property rights.
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  • Katie Gill

    Can you give a bit of background for what filing a lawsuit may entail for “Lawnmower Man”? I understand the the variables may be endless, but would you be able to offer a fairly simple scenario?

    Thank you.

    • In order to file a lawsuit for copyright infringement, your copyrighted material must be registered with the U.S. Copyright Office. If Lawnmower Man had not registered his photos and review at the time it was infringed, then he would need to do so before he filed his lawsuit. Filling out the application to register a copyright is a pretty simple process and the filing fee is generally between $35-$85 depending upon what type of work you are registering and whether you file online or by mail. The problem with a lawsuit for work that was not registered at the time of the infringement is that you can only sue for actual damages and profits. These damages could be hard to prove by Lawnmower Man for a product review article on a blog. If your copyrighted materials were registered at the time of the infringement, then you can receive statutory damages, which range from $750 to $150,000 depending upon the willfulness of the infringement, and you can request that the court award you attorney’s fees. As you can see, registering copyrighted materials can give you quite a bit of security.

  • Thanks for this. I had this problem in the past but simply didn’t care enough to get into the whole process of submitting a DMCA request. This way I can simply whip out this nice template, sculpt it to my liking and done.

    Have noticed people getting more and more hardcore about these DMCA requests. Just last month we got a DMCA takedown in GWT for a embedded YouTube video on a clients website. German market is all about playing the law card…

    Greetings from Innsbruck,

    Alex

  • DMCA requests have been hitting all time high ever since Google Panda came in. Top sites such as Copyscape also helps you find out whenever someone has copied your content.

  • Jaume

    Excellent article, and so timely. I have been looking online for the best way to use DMCA to remove some content off another’s site. This answered all my questions.

  • Although anyone who cares to read the agreements of the publishing platforms must have come across a summary of the DMCA, a link to the unabridged version of the document, and the steps that you have mentioned, however, a discussion based on an actual or fictional scenario usually makes it easier to apply the under discussion principle or provision of law when needed, so thank you for using an example to guide those who feel wronged by the actions of a person or an entity on how to benefit from the provisions of the DMCA.

    Having gone through the article, comments, and your responses to those comments, I would like to raise the following couple of points:

    1. As grownups, while sending messages to an individual in whose case even the first name, at least at the start of such a process, remains unknown to the wronged party, why can we not start our messages with a simple Hello.

    2. In your response to Katie Gill’s comment, you have mentioned that proving the damage incurred by the Lawnmower Man could be hard to prove. As the number of weekly or monthly hits received by a blog post usually determine its value to the marketers and advertisers, regarding which one can get a fairly accurate assessment by visiting sites like http://www.buysellads.com or by looking at the volume of queries for the exact and relevant search terms, why should it then be difficult to prove the damage caused by such blatant republication of copyrighted material?

    Although I would appreciate your response, however, I would once again like to thank you for explaining the matter with the help of a fictional yet extremely pertinent scenario.

  • Troy,
    Great article. This was valid and cut n dried 5 years ago, but now the rules have changed.

    A question I have yet to heard answer, is how does this apply to curation sites & tools out there, for example scoop.it where you can embed scoops (of sites) on your social media feed or blog?

    Thanks

    Steve