DMCA take down notice demystified

This is a subject that is often misunderstood even by those who should have a thorough knowledge of how DMCA takedown notices work. That includes site operators and copyright holders who are the most likely to encounter such notices.

DMCA take down notices is covered in The Online Copyright Infringement Liability Limitation Act (OCILLA) which is part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the “Safe Harbor” provision or as “DMCA 512” because it added Section 512 to Title 17 of the United States Code.

Wikipedia does a decent job of providing an example of how a take down notice works but here’s a modified version that is more accurate as it pertains to how it works on a day-to-day basis. Although a take down notice can be issued by an attorney, they do not need to be. Anyone who can follow simple instructions can issue one and it only takes about 5 minutes. On the receiving side, no lawyers are required to act on a take down notice. Any student capable of reading at the high school level can act on a take down notice. It is designed to be simple.

Here’s an example of how the takedown procedures would work:

  1. John the fake photographer puts a copy of Bob’s copyrighted picture on his Myspace account as his own.
  2. Bob, searching the Internet, finds John’s copy.
  3. Bob sends an email or letter1 to Myspace’s designated agent (registered with the Copyright Office) including:
    1. contact information
    2. the description or identification of the picture that was copied
    3. the address of the copied picture on Myspace so they can find it
    4. a statement that he 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.
    5. a statement that the information in the notification is accurate
    6. a statement that, under penalty of perjury, Bob is authorized to act as the copyright holder
    7. his signature
  4. Myspace must takes the picture down. No interpretation is require of the picture. The only interpretation required is if the notice was properly formatted.
  5. Myspace tells John the fake photographer that they have taken the picture down.
  6. John now has the option of sending a counter-notice to Myspace, if he feels the picture was taken down unfairly. The notice includes
    1. contact information
    2. identification of the removed picture
    3. a statement under penalty of perjury that John has a good faith belief the material was mistakenly taken down
    4. a statement consenting to the jurisdiction of John’s local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which Myspace is found.
    5. his signature
  7. If John does file a valid counter-notice, Myspace notifies Bob, then waits 10-14 business days for a lawsuit to be filed by Bob.
  8. If Bob does not file a lawsuit, then Myspace must put the material back up.

Until a lawsuit is filed, no lawyers need to be involved in any of these steps. And if a lawsuit if filed, the suit is against John, not Myspace. Myspace is completely shielded and immune from any lawsuits if they followed the steps correctly.

*1 A physical letter is required under the law but almost all websites will act on a DMCA notice received via email if properly formatted.