Breaking Down The (DMCA) Takedown

Copyright and trademark infringement is rampant these days as we all know, and if you own copyrights and/or trademarks, this means you have to be vigilant — in real life as well as online — for infringements of your copyrights and/or trademarks.  But far too few entrepreneurs and small businesses know where to begin when they learn that someone has infringed their copyrights and/or trademarks, especially if the site where the infringement has happened isn’t YouTube, Tumblr, Instagram, or any other large entity that will respect a Digital Millennium Copyright Act (DMCA) takedown notice.

This first thing you have to do when you find your intellectual property infringed upon is to send a DMCA notice to the company.  If that yields no results, then send a DMCA notice to the web hosting company.

What copyrighted materials does a DMCA takedown notice cover?

 In a nutshell, it will take down any copyrighted materials as long as you can prove that it you own the copyright, that your copyright has been infringed upon, and that you haven’t given permission for the third-party to use your copyright.  This means that any text (including Word. Doc documents, plain text etc), video (including MPG, AVI, RM, MOV, Quicktime, Windows Media Player, RealPlayer), music and audio (including MP3, MP4, MIDI, WMA, WAV), images, pictures and photos (Including JPG / JPEG, GIF, PNG, PSD et al) even when they are posted to social media; and software can be part of a DMCA takedown notice.

What does the notice need to include?

In short, the following eight items must be part of your DMCA takedown notice:

1.  Your full name and email address;
2.  Name of Infringing work;
3.  Original Content URLs;
4.  Infringing Content URLs;
5.  State that the website’s use of your copyright or trademark is infringing on your copyright and/or trademark;
6.  A good faith belief statement stating that the copyright and/or trademark owner, its agent, or the law, has not authorized the use of the infringed copyright and/or trademark.
7.  A statement that the information in the notification is accurate, and under penalty of perjury, that the person filing the complaint is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
8.  A dated electronic signature of the copyright owner or a person authorized to act on behalf of the copyright owner.

NOTE If you file your DMCA takedown notice via email or website contact page, a digital signature must be preceded with /s/ followed by your name.

What if the contact information to send a DMCA takedown notice to isn’t available on the website?

There’s no cloak-and-dagger involved here as a WHOIS search only requires that you input the name of the website where the alleged infringed copyright materials are found, and hitting the submit or send button.

What if the website isn’t hosted in a notice-and-takedown country?

This doesn’t mean you are out of luck because you aren’t.  You can file a DMCA takedown notice with search engines which will minimize the damages incurred from having your copyrighted materials on the website in question.

Can I write my own DMCA takedown notice if I don’t know any legal jargon?

You don’t need legal jargon for a DMCA Takedown Notice to be effective.   All you have to do is to make sure that your DMCA takedown notice conforms to the format set out by the government.

What if the website refuses to honor the DMCA Takedown Notice?

While that would certainly be disconcerting, you aren’t without options.  At that point, you still have the option to file a complaint through the FBI and National White Collar Crime Center partnership, using the IC3 form found HERE.

The Internet Crime Complaint Center (IC3) deals with matters of “online fraud in its many forms including Intellectual Property Rights (IPR) matters, Computer Intrusions (hacking), Economic Espionage (Theft of Trade Secrets), Online Extortion, International Money Laundering, Identity Theft, and a growing list of Internet facilitated crimes.”

What if my copyrighted materials aren’t registered with the Copyright Office in the U.S., the Canadian Intellectual Properties Office in Canada, or any other similar government department in another country?

Copyright exists at the time of creation which means that creators are entitled to copyright protection as laid out in their country’s Copyright Act.  As long as you can prove that you are the owner of the allegedly infringed copyright, you can file a DMCA Takedown Notice.

Final Note

Don’t be afraid to take a stand against theft especially when it impacts on your business.  You worked hard to get to where you are, and no one has the right to dip into your bank account and relieve you of your royalties without your express permission.

Elyse Bruce

SUGGESTED READING

DMCA Takedown 101
http://brainz.org/dmca-takedown-101/

The DMCA Takedown Notice Demystified
http://www.sfwa.org/2013/03/the-dmca-takedown-notice-demystified/

How To Write A DMCA Takedown Notice
http://www.thelaw.com/guide/ip/copyright/how-to-write-a-dmca-takedown-notice/

In Plain English: A Quick Guide TO DMCA Takedown Notices
http://copyrightalliance.org/2012/03/in-plain-english-a-quick-guide-to-dmca-takedown-notices#.VVIzNvD2uNU

The Notice And Take Down Provisions of the DMCA
http://www.ivanhoffman.com/dmca.html

Responding To A DMCA Takedown Notice
http://www.nolo.com/legal-encyclopedia/responding-dmca-takedown-notice.html

Subject Matter and Scope of Copyright
http://www.copyright.gov/title17/92chap1.pdf

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