What you NEED to know about the DMCA - Stephan Spencer | Stephan Spencer

What you NEED to know about the DMCA

The DMCA, or Digital Millennium Copyright Act, provides you as a website owner with a useful hammer you can use to beat on copyright infringers.

As a content producer, you have the right to enforce your copyright. When your content gets “re-purposed” on other’s websites without your permission, you can file a DMCA Infringement Notification to the infringer’s web hosting provider and get that infringer’s website shut down (like Ian McAnerin did recently). In DMCA legalspeak, this notification is also known as a “Takedown Notice”. In addition, you can get the naughty infringer de-listed from Google and other engines. (I can hear you saying “Ex-cellent!” in a Mr. Burns voice right now).

It is not a daunting procedure. It might take an hour of your time, and it is well worth it.

Here’s what to do…

  1. First, look up the web host and the domain registrar of the offending site, using lookup tools such as this one from Netcraft and this one from Domain Tools. You can usually ascertain who the web host is from the Name Servers and/or the Netblock Owner.
  2. Next, check the official directory of designated DMCA agents for the host and the registrar. (Hopefully they’re listed!)
  3. Then you prepare a letter to send to the designated agent of the web host. The notice you write should include: your contact information, the name of the content that was copied, the web address of the copied content, a statement that you have a good faith belief that the material is not legal, a statement that under penalty of perjury you are the copyright holder, and your signature. Some web hosts will allow you to email your notice to them, making it all that more convenient.
  4. Also be sure to send a similar notification to the seach engines. That will cut off their air supply, in case the site doesn’t get taken down right away. Here are instructions and contact details for each engine: Google, Yahoo! and Windows Live Search (formerly MSN Search). Note that Google requires you to mail or fax your letter, whereas Yahoo and Microsoft (Live Search) both allow you to email your notification.
  5. If the web host doesn’t take the site down promptly, then submit a DMCA notice to the infringer’s domain registrar. Note: It might be worth sending a notice to the data center that the web host uses before you try the registrar, as Dan Richard recommends.

Ian McAnerin posted some handy DMCA notification letter templates to make this process even easier: for the web host, for Google, for Yahoo, and for Live Search.

Then there’s the other end of the stick, where someone could use DMCA unfairly against you! It happens. Competitors do use the DMCA to silence competitors. You, as a website owner, need to protect yourself from unwarranted (or at least unwelcome!) prosecution. If the potential exists for you to inadvertently host infringing material on your website(s) — for example if you are hosting online forums, group blogs, blog comments, or other types of content that can be submitted from others besides yourself — then here are some actions you can take to help protect yourself…

  1. It’s helpful if you can qualify as a service provider that can be covered under the Safe Harbor provision. For example, you may qualify if you offer a search engine or a bulletin board system.
  2. If so, notify your customers of your policies regarding copyright infringement and the consequences of repeated infringing activity. One way of achieving this is by making it part of your Terms of Use.
  3. Also, publish a page on your website with DMCA filing instructions and state that, if and when you get a DMCA notification, you will act on it. Here’s an example of such a DMCA Notification Instructions page.
  4. And most important, check the directory of designated agents, and if your company isn’t listed there, complete and file this form to the Copyright Office for inclusion in the directory.

If you’re interested in the gory details of the DMCA, you can read this.

Disclaimer: none of this is legal advice.

About Stephan Spencer

One Comment

  • Peggi says:

    Hi… I have a few questions about take downs and I hope that you can answer my questions – or maybe point me to a place where I can find the answers. I want to file a take down notice – and I understand that I can be held liable for perjury if I am dishonest when I file. No problem there as I am the rightful owner of the copyright-protected artwork in question. But from what I understand, the copyright infringer can then simply file his own response to my complaint to the web host and – if I don’t file an infringment lawsuit within 14 days of his response – then the web host has to put the site back up. Despite the fact that the infringer can be held liable for perjury if he responds dishonestly, he can still – in fact – respond dishonestly and hope that he doesn’t get punished for perjury. So… my questions are… is it up to the host to determine who is telling the truth? If I can’t afford to hire a lawyer over this infringement, and the infringer knows this, he can simply lie and take the chance that he’ll get away with it. If that’s the case, then it seems to me that the DMCA isn’t going to protect me – unless the host believes me and not the infringer. So does the host actually attempt to determine who is telling the truth? Or is that left to the courts to decide?

    I have registered the copyright to my work but I don’t have the certificate back yet. I have read that it’s not a requirement of the DMCA to register the work with the copyright office but that one can only sue for infringment on registered works. So… it might make sense for me to wait for the registration process to be complete before I do anything further about this infringement – but I was wondering if you know the answers to this question… is the work considered registered on the date that I register it or is it considered registered on the date that I received word from the copyright office that the registration is complete?

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