How to file a DMCA Takedown notice
last month, I alerted you to Blasty, an online tool that helps you thwart illegal downloading of your copyrighted content.
Although I have had an excellent experience with Blasty, I wanted to share with you the procedure for filing a DMCA takedown notice. DMCA refers to the “Digital Millennium Copyright Act.” passed by president Bill Clinton in 1998.
First, rule out fair Use
If you don’t understand Fair Use very well, take a moment to consider it before sending your takedown notice. For example, a news site has the right to use one of your comics in a post that talks about your career as a cartoonist. Educators have special protections under Fair Use as well.
First of all, Fair Use has a very clear legal definition. To qualify for “Fair Use” protection, you’d have to prove that the central point of your piece was to make a comment (satire or parody) on the IP — or your work was done in the pursuit of other goals (such as research, education and reporting the news).
So a newspaper can run a photo of Han Solo next to a story about Star Wars: The Force Awakens. That’s allowed under the pursuit of reporting the news. And Saturday Night Live can do a parody of the movie — because that satire makes a comment on the original work.
But a comic that mashes up Han Solo with a muppet — including a clever pun? That’s not commenting on either the Star Wars IP nor the Muppet IP (owned by Disney).
And when you offer that T-shirt for sale, your potential buyers are dominated by two groups — those who are interested in the Star Wars characters and those interested in Muppets.
In fact, if that T-shirt was to start to earn any serious amount of money, those original IP-holders could easily ask for a share. And their case would be easily proved. They’d say… “Hey… would anybody have bought this shirt this if it weren’t for the copyrighted characters?” The answer would be obvious. Burden-of-proof carried.
Very few of those T-shirt buyers are truly there for your work.
Wanna test that theory? Try marketing a few shirts that don’t trample the IP of others. It can be a bracing (and someone demoralizing) measurement of just how much you’re really bringing to the table.
Identify the ISP behind the offending Web page
When I see a site that’s using some of my work inappropriately, my first step is usually to contact the people behind the site. In many cases, it’s a simple matter of informing them about how their illegal use of the work harms my business. However, that’s not always practical — or possible. Contacting the organization that hosts the Web site that is stealing your work can be much more effective — particularly in the case of an uncooperative webmaster.
Creating your Takedown Notice
Your Takedown Notice to the hosting ISP must meet certain requirements. Specifically, your notification must:
- Be in writing;
- Be signed by the you, as the copyright owner (your electronic signature is sufficient);
- Identify the copyrighted work that you claim has been infringed (or a list of infringements from the same site);
- Identify the material that is infringing your work;
- Include your contact information;
- State that you are complaining in “good faith;”
- State that, “under penalty of perjury, that the information contained in the notification is accurate;” and
- State that you have the right to proceed (because you are the copyright owner or the owner’s agent).
Here’s an example of a DMCA takedown notice I recently filed.
In my experience, the offender will usually choose to take down the file or link immediately. It’s the path of least resistance. If you’re offering illegal download of eBooks, for example, you’re operating on volume. Taking down a few books from irate copyright-holders is much easier than dealing with the fallout if one or more of those folks decide to make a stink.
However, they do have the legal right to file a counter notification to their ISP. In the counter notification, the offender will simply say that they do, in fact, have the legal right to the image or the eBook — and that you are the one who is in the wrong. Now the ISP is caught in the middle of a “He said / She said” situation — and they’re legally obligated to side with their client.
If that happens, you have to consider whether this is important enough to pursue legal action.
For more information
Check out the DMCA website.