How to Roll Your Own DMCA Notice

Before the passage of the Digital Millennium Copyright Act (DMCA) in 1998, people who discovered their copyrighted material being used illegally by others on the Internet had little recourse but to seek an injunction against the offenders. This process was not only costly (attorney and court fees can bankrupt even victorious litigants), but extremely slow. While the copyright owner pursued legal action, the offender was free to continue their perfidious exploitation. With new websites and technologies springing up overnight, people looking to defend their intellectual property needed a faster and far cheaper alternative.

That alternative found its way into law via the signature of then-President Bill Clinton, and in the years since, has become a point of contention in the struggle to strike a balance between the protection of intellectual property and freedom of expression in a postmodern world. For people and businesses who need to pursue a claim against someone misusing their property, however, it remains a fast and cost-effective option.

Time for a Takedown: Issuing a DMCA Notice

The first step in any copyright violation matter is to make sure the offender is actually violating your copyright. Familiarize yourself with fair use and make sure you’re in the right before you issue a notice. Then reach out to the offender and request they remove the content. Many times, they’ll be happy (or at least willing) to do so.
If your initial efforts to contact the offending party directly prove unsatisfactory, then you can escalate by contacting the offender’s Online Service Provider (OSP). Under the auspices of DMCA, an OSP is defined as “a provider of online services or network access, or the operator of facilities therefor” (including both Internet service providers (ISPs) and user-generated content sites such as Tumblr, DeviantArt or etsy) hosting the site or sites featuring your pilfered content. These companies are protected by the “safe haven” provisions of DMCA (provided they comply with good-faith requests), and are generally very cooperative as a result. In fact, many OSPs have standing policies with regard to DMCA takedown notices, and will work to resolve the issue quickly and efficiently.
Rolling your own DMCA notice does not require a lawyer, but it does have very strict requirements that make the idea of consulting an attorney worthy of serious consideration. Even a minor omission (or inadvertent addition) can render your DMCA invalid (costing you precious time and money filing another one), so be sure to review the following checklist carefully.
As per Title 17, Chapter Five of United States Copyright Law, your DMCA notice should include:

• Your signature (as the copyright holder or their authorized agent)
• Identification of the work being infringed (or a list of such works), including the URLs where the original content you created may be found
• Identification of the offending material you want removed or blocked, and information about its location to point the OSP in the right direction (for example, the URL of the page where the stolen content appears)
• At least three ways for the OSP to contact you (e.g., address, phone number, and email)
• A statement indicating you have 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
• A statement avowing the information in (the) notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Once you’ve completed your DMCA and reviewed it carefully (or, better yet, had it reviewed by an attorney well-versed in such matters), you’ll need to find the agent specifically designated by the OSP to receive and process DMCA takedown notices. Under DMCA, all OSPs are obligated to provide the United States Register of Copyrights with contact information for these agents, and since they all have e-mail addresses, you should be able to deliver your takedown notice without having to hunt around for a stamp. Keep in mind, though, that while it will be fairly easy to track down large OSPs like Tumblr, DeviantArt or Blogger, you may have to contact the ISP or other hosting agent of small, personal sites to get results.
Also, remember that you don’t have to limit the scope of your notice to the offending site itself; you can also issue DMCA notices to sites with a “directory, index, reference, pointer, or hypertext link” to your material. In practice, this means that you can issue a notice to search engines like Google and demand they remove links and search results that point to the sites with your stolen content. That said, keep in mind two other important points:
1) Most sites dedicated to the creation, collection and distribution of stolen content (i.e., piracy sites) are hosted overseas and not covered by domestic law. They’re not beyond the reach of your claim, however; you can work with a professional service to assert your claims in areas outside U.S. jurisdiction.
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2) While DMCA notices are far less expensive (and much faster) than traditional legal wrangling, and you are free to defend your intellectual property to whatever extent you deem appropriate, an overly ambitious defense can end up costing you serious cash. Focus your efforts on shutting down the thieves whose actions are taking the most from your pocket, and handle the rest on a case-by-case basis.

The Aftermath

Because the law itself is somewhat vague about just how quickly offending parties (or their OSPs) must respond DMCA takedown notices, responses vary. Recipients must “respond expeditiously,” but no specific time period is given for remedy, so your content could be removed the same day as your request, or days, weeks, or even months later. Be patient, but keep the pressure on if you aren’t getting a response.
In the event the offender fails to comply with (or files a contesting reply to) your DMCA takedown notice, more robust options (including civil court) are available. Just remember to consult a legal professional before you escalate.

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