By Nan Shen
Saint Louis University School of Law
Juris Doctor Candidate, 2021
Copyright rights exist once an original work of authorship has been fixed in any tangible medium. For the majority of original works, the creative standard can be easily satisfied. For example, once a person uploads a photo, it’s automatically copyrighted, and another’s unauthorized “borrowing” and reposting of the photo might be considered an infringement. Social media is an environment rich with opportunities for users to connect to one other with content. In 2018, a New York federal judge ruled a news organization that had embedded Tweets containing an individual’s picture of football great Tom Brady without the photographer’s permission had violated the Copyright Act. The photographer took the photo and uploaded it to his Snapchat Story, which is an ephemeral platform. The photo went viral because the media theory was that Brady was joining the Boston Celtics’ lobbying effort to bring Kevin Durant to Boston. US District Judge Katherine Forrest ruled for the photographer. Similar cases have become common.
More recently, the booming social media app Tik Tok brought out additional potential issues of copyright infringement. At the end of 2019, TikTok published its first “transparency report” on requests from governments, law enforcement, and copyright holders for takedowns and other actions. This report indicated TikTok had received 3,345 takedown notices for copyrighted content in the first half of 2019, and that it had removed some content in response to 85 percent of these requests. If you download others photos without permission and post it, whether it be on your site, in a blog post, or on social media, there is a reasonable likelihood you are committing copyright infringement.
Putting the shoe on the other foot, what options do you have when you find that your valuable designs or other intellectual content have been taken by someone else and used on other websites or media? You can always contact a volunteer lawyers for the arts organization for a referral to an attorney, but the people who borrowed your content might take advantage of that downtime. Speed may be of the essence and it’s advisable to get your stolen content down as soon as possible. For situations like these, a DMCA takedown notice may be a faster and more convenient option for content owners.
What exactly is a DMCA takedown? The Digital Millennium Copyright Act (DMCA) was enacted into law in 1998 when the commercially available Internet was fairly new. This law was created to address online copyright infringement in a way that balances the interests of copyright owners, online service providers, and Internet users. A DMCA takedown refers to a notice sent to a website on behalf of a copyright owner under the belief that someone has infringed a work by posting it on-line without authorization and asking that it be removed. Compliance with this request would be achieved quickly without the cost and hassle of filing an infringement lawsuit. The content owner typically notifies the web provider of the offending site, which is an Internet Service Provider or ISP, and usually, the ISP will remove the complained about the content. The DMCA shields ISPs like YouTube from copyright infringement claims if they properly remove the infringing material after receiving the takedown request. By first establishing a reporting mechanism and then removing the allegedly infringing content, the ISP can’t be successfully sued for infringement due to this “safe harbor” provision.
After taking down or locking the material temporarily, the ISP usually notifies the individuals who maintain the offending website page and informs them about the takedown notice to explain why the content is now missing. This procedure also allows the alleged infringer to respond, and the DMCA provides a mechanism for restoring content that was taken down in error. This put-back procedure acknowledges that users are often creators of new works and/or have made fair use of others’ works. This entire DMCA works when the user uploads infringing material instead of the website administrators because the administration itself is subject to. If the website administrator uploads infringing material, they cannot rely on DMCA and safe harbor provisions to shield themselves.
So how can one file a DMCA Takedown Notice? You may choose to look for help from a commercial service like dmca.com.
Of course, you can also start your own takedown notice. Before taking any action, you may want to ask yourself several questions. First you would like to check whether the “infringing party” has any permission from you and you should pull back out any agreements that you have like a contract, licensing agreement or emails. Then you may want to analyze whether sending the notification and argue with the other party back and forth is worth your time and effort. If filing the notice would not help your career or business, then you might want to stop here
To start your own DMCA takedown notice, you should locate the DMCA link on the ISP’s platform where you typically find the providers’ forms. If the site provider did not provide its own forms, you can draft your takedown request form. Most Internet providers have a page on their site where you can find instruction for the format of the takedown form. The U.S. The Copyright Office website hosts a DMCA Designated Agent Directory where you can find contact information for the service provider’s designated DMCA agent. The designated agent is the party to whom all notices for a given service provider must be sent. The takedown notice should include an identification of the infringed work, a description of the infringing activity and a link, a statement of good faith indicating your belief that an infringement has occurred, a statement that all information provided is accurate and your authorization to file this notice, and your specific contact information. The DMCA counternotice occurs after the initial DMCA Take Down has been completed and it cannot be used as a pure defense or delay. Once the service provider has received a DMCA counternotice in good faith, they must wait 10-14 days before they reactivate or allow access to the claimed infringing content. Unless the copyright owner files an order in court against the infringing site owner, the defendant, and demonstrates the order to the ISP.
What happens if you are the party receiving a takedown notice for your own content and/or you think the notice was wrong? First, you should check whether the notice included the correct information mentioned above. Then you should check whether the sending party has the authorization to file the takedown notice, like an author, law firm, publisher, or rights management organization. Next, you could consider whether you have permission to use the work in question or whether you can make a valid fair use defense. (examples: sound or video clips for teaching, student projects, mash-ups, remixes, and thumbnail images on search engines.) You should seriously consider the merits and the importance of your use before filing a counternotice because it could result in legal action. The platform in question may also include instructions for drafting a counter-notice and where to send it, which you can also learn by accessing the DMCA Designated Agent Directory. The counternotice should include the description of the alleged infringing work/activity, a statement of good faith indicating you believe the removal was wrong, your specific contact information, and a statement of consent to the jurisdiction of the federal court in the district of the copyright owner. It’s always wise to seek legal counsel before sending the counter notification, too.
In general, if done properly, DMCA Takedown Notices serve as a cost-effective, quick, valid and convenient tool for copyright owners to protect their valuable assets, and stop infringing activities.