- What is the DMCA Responsible for Providing?
- What Happens if you do not Obey a DMCA Takedown Notice?
- Does Fair Use Apply to DMCA Takedowns?
- How do I Submit a DMCA Copyright Infringement Notice?
- DMCA Takedown Notices Steps
- What Constitutes a DMCA Violation
- What Happens if you get a DMCA Copyright Infringement Notice?
- What to do if you get a DMCA Copyright Infringement Notice
- How Do you Protect Yourself from DMCA Takedowns and Civil Lawsuits if you own a User Content-Generated Website?
- The Importance of Setting up a Website Copyright Policy
- How do I get Permission to use Someone else’s Work?
- How do I File a DMCA Takedown on Google?
- How do I File a DMCA Takedown on YouTube?
- How do I file a DMCA takedown on Facebook or Instagram?
- How do I file a DMCA takedown on Tik Tok?
- How do I File a DMCA Takedown on Wikipedia?
- How do I file a DMCA takedown notice on Xvideos?
What Does a DMCA Takedown Do?
A DMCA notice and the process of a takedown allows copyright holders to remove their digital media from infringing websites. You can send a DMCA directly to a website owner OR their hosting provider. A DMCA takedown addresses copyright infringement only. That means you cannot use the process to take down material that does not infringe on your work. In other words, only the owner or a legal representative may send a DMCA notice.
- Improper or unlawful use of DMCA takedown process may lead to civil action.
- You may file a DMCA notice even if you have not registered with the US copyright office.
- Fair use and fair dealing exceptions allow third parties to use copyrighted content without the owner’s consent.
- Altering CMI (Content Management Information) is a criminal offense.
- The penalty for infringing someone else’s work includes civil action, fines, and possible jail time.
- You may file a DMCA counter notice if you receive a takedown notice.
- If you voluntarily comply with a DMCA take down notice it may help you avoid civil action.
- Internet service providers are considered a conduit and not responsible for the content that passes through their networks.
What is the DMCA Responsible for Providing?
DMCA or the Digital Millennium Copyright Act is a law that addresses online copyright infringement. The act balances the needs of the user, online service providers, and copyright owners. Because of that, if or when someone uses your work without permission, a DMCA takedown notice allows you to ask the website owner to remove the material without having to resort to litigation.
What is a DMCA Safe Harbor?
If you own a website and receive a DMCA takedown notice, DMCA shields you from liability if you remove the material in question.
The Four DMCA Safe Harbors
- Storage safe harbor: protects online service providers from copyright liability on the condition that storage of the material was at the direction of a user. That means the user, not the online service provider, is the one responsible for the presence of the infringing material. This protection applies to most websites.
- Transmission safe harbor: protects service providers such as telecom companies from liability from infringing material transmitted by end-users.
- Caching safe harbor: protects service providers from liability for storage of infringing material.
- Information location tools safe harbor: This is a protection for search engines such as Google which does not hold them liable for directing, referring, or linking online locations that may contain infringing material.
What Happens if you do not Obey a DMCA Takedown Notice?
If your work infringes on someone else’s copyright, the platform you are using may kick you out, and the copyright owner may take civil action. For example, on Google, if you do not have the right to use copyrighted material on your page. Upon request or notification, Google may disable access to the page or content that violates copyright laws. Furthermore, if Google receives a valid infringement notification, the platform may issue a strike against the violator.
According to Google, each infringement is a separate violation, meaning, you may face multiple lawsuits and, in some cases, criminal penalties.
Remember. 17 US Code 1204 “criminal offenses and penalties” reads, quote:
“Any person who violates section 1201 (Circumvention of Copyright Protection Systems) and 1202 (false copyright management information) willfully and for purposes of commercial advantage or financial gain- shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.”
In other words, under the Digital Millenium Copyright Act, it is unlawful to provide false Copyright Management Information (CMI). CMI refers to information about the copyrighted work, including the owner or creator. It may contain terms and conditions for using the work, ISBN, copyright registration number, or the copyright owner’s name.
Can you Modify Copyrighted Work?
No matter how many changes you make to copyrighted material, you cannot claim ownership without the owner’s permission. That is according to DMCA section 1202. The statute prohibits the removal and alteration of content management information. It also makes it unlawful to distribute or import copyrighted material whose copyright management information has been removed or altered.
DMCA Video and Image Rights: What is a Name and Likeness Agreement?
In contract law, the use of likeness and image rights stipulates how a company or third party may use your name, image, signature, or other identifying information. Some states also have “right of publicity” statutes that prevent commercial use of your likeness or identifying information for commercial purposes without consent. For example, if a website uses your name and likeness to promote a product without your consent, you may have grounds to take civil action.
The Right to Publicity is either common law or statutory, depending on state law. We recommend checking local statutes or consulting with an attorney near you.
To file a right to publicity claim, you must prove three elements:
- The accused used your name or likeness.
- The individual used your name or likeness for commercial benefit
- You did not consent to the use.
Can you use Someone’s Likeness without Permission?
No. The law does not allow using someone else’s name or likeness without consent. That means if you use someone else’s picture or likeness for commercial benefit, you may face two types of lawsuits:
- Invasion of privacy through misappropriation of name or likeness.
- Violation of the right to publicity.
You can use our free form builder to build your own comprehensive name and likeness agreement.
That raises the question:
Does Fair Use Apply to DMCA Takedowns?
To safeguard your first amendment’s freedom of speech. DMCA’s fair use policy allows creators and users to use copyrighted material without a license or permission. Note section 17 US code 107 “Limitations on exclusive rights: fair use” reads, quote:
“The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include.”
- Purpose and character of the use: Does the new material add new meaning or expression to the copyrighted content, or does it merely copy from the original?
- The nature of the material/work: Is the work fictional or factual?
- Amount of substantiality of the portions used: Are the portions small or large? Using small portions of copyrighted materials is fair use unless the portions capture “the heart” of the work.
- Effect on the market: Does the content harm the profitability of the copyrighted work?
Content Protected by Fair use in the US
- News reports
How do I Submit a DMCA Copyright Infringement Notice?
Before submitting a DMCA takedown notice, it is advisable to ask four questions.
- Is the use fair?
- Is the infringing activity helping or harming my business?
- Did I authorize the company or person to use the material and is the person working within the set terms?
- Do I have the financial resources to file a lawsuit?
If you have answers to these questions and have decided to file a takedown notice or take civil action. Below is what you need to know.
DMCA Takedown Notices Steps
Step 1: Gather Evidence
To preserve the violations. Take screenshots of the infringing materials and preserve them. Why? When you send a takedown notice to the website’s service provider, the web host may take down the infringing material for fourteen days. The website owner may also take down the material to avoid litigation. Having evidence will help you prove your claim.
If you do not take civil action within fourteen days, the host may put it back up if it does not violate their terms of service.
Note: you have the option to contact the site owner directly or the website’s hosting service provider.
Step 2: Contact the Website’s Host
You may use services such as lookup.icann.org to find web hosts. Once you find the site’s hosting service provider. What you need to do is to draft a DMCA notice and send it. There are plenty of templates on the internet that you may use to create basic DMCA takedown notices, but if you require something more advanced it is best to consult with a law firm.
The notice must be compliant with section 512c of the DMCA act. That means it should include the following elements:
- The copyright owners or owner’s agent digital or physical signature.
- A URL linking to the infringing material.
- Identify the copyrighted work, infringed material, infringing activity, and the location of the infringing activity.
- Your contact information including your email address.
- A statement that you have a good faith belief that the use of the material was not authorized.
- A statement that the information you provided is accurate and you are authorized to make a complaint on the behalf of the copyright owner.
- A physical or electronic signature
To build all of these elements you can use our DMCA takedown notice template to automatically build a free takedown request.
Note: Providing a false statement may lead to perjury charges.
Step 3: send the DMCA Takedown Notice to the Infringing Website or Web Host.
What Constitutes a DMCA Violation
When you send a DMCA takedown notice, you risk civil action if the information provided is false. For example, if you do not own the infringing material in question and send a notice, the website owner may have grounds for civil action. That raises the question, what is a Digital Millenium Copyright Act violation?
You violate DMCA guidelines whenever you post material on your site that infringes on a copyright. To avoid potential lawsuits or, in some cases criminal charges, you should do the following:
- Before you use work that is not yours, seek permission from the owner. It is good practice to get everything in writing or on record.
- Review your state’s or country’s copyright laws before you post.
- Assume that everything you find on the internet, including free stock sites, is copyrighted. Therefore, if you download and use stock images, videos, movies, and so on, give credit to the asset owner.
Note: copyright laws apply to both protected and unprotected work, meaning you may face civil action even if the work is not copyrighted.
Some Examples of Copyright Infringement Include:
- Online piracy/ uploading computer programs, music, or videos to your website without authorization.
- Downloading songs or videos without paying for a license
- Copying or plagiarizing someone else’s work.
- Copy-pasting text from another site to yours without permission.
- Recording a movie in a theater and uploading it on your site.
- Recording and posting theatrical events.
- Use of copyrighted music or videos in your content without authorization.
- Selling merchandise that contains copyrighted material without consent or loyalty agreement.
- Posting portions of a TV show on video-sharing websites such as YouTube.
What Happens if you get a DMCA Copyright Infringement Notice?
Under the US copyright act, the owner of the infringed material may take civil action against the infringing party. However, the parties may decide to settle the dispute out of court. If negotiations fail, there will likely be a trial. Each party will present its arguments during the trial, and it is up to the judge to decide how to settle the issue.
For criminal cases – The infringing party may face jail time, punitive damages, and damages.
What to do if you get a DMCA Copyright Infringement Notice
When you copyright material, it means that you have exclusive rights to copy or distribute your work. Some examples of works protected by copyright LAWS include photographs, music, artwork, and written texts. If you notice unauthorized work use on someone else’s website, you may request a DMCA takedown.
The question is, what should you do if you receive a takedown notice?
Suppose you do not own rights to the media. The easiest thing to do is to remove the material the other party is complaining about immediately after you receive a DMCA notice. What if the content is not infringing?
You may submit a counter-notice.
What do I mean?
When someone requests a takedown notice, the law requires your online service provider to notify you of the request. When you receive a takedown notification and are sure that the material does not infringe copyright laws, you may submit a DMCA counter-notice. What is a DMCA counter-notice?
A DMCA counter-notice contains an explanation on why the video, photo, or other media does not infringe rights, or in other words, it explains why you disagree with the copyright owner. Remember, as mentioned, under federal and state law, altering content management information and providing false information in a counter-notice may lead to civil action or criminal prosecution.
In short, this is what will happen:
- You receive a DMCA takedown notice.
- You may take down the content or submit a counter-notice.
- If you submit a counter-notice, your service provider must wait for fourteen days before taking down the content.
- If the person requesting the material to be taken down files a civil lawsuit within those fourteen days. Your service provider will take down the content.
- If the requester does not file a suit within the set time, the law requires your service provider to reactivate and allow access to the infringing content.
How Do you Protect Yourself from DMCA Takedowns and Civil Lawsuits if you own a User Content-Generated Website?
As a website owner, you are a service provider. 17 US code section 512 “limitations on liability relating to online material,” reads. Quote:
“A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright because of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or because of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, If”
- you did not direct or initiate the transmission of the material (user-generated content).
- The transmission process was automated/ you did not select the material.
- The service provider did not select the recipients of the material.
- The material was transmitted through the network or system without modification.
In short, what I am saying is. If you own a user-generated website, a court cannot hold you or the administrator liable for monetary damages for infringing content posted by a user if:
(1) you are not aware of the existence of infringing content on your site.
(2) you do not financially benefit from the infringing activity.
(3) you removed the content upon receiving a takedown notice.
The Importance of Setting up a Website Copyright Policy
A website copyright policy protects your content from infringement and may shield you from liability. However, if you do not have one, we recommend consulting with an intellectual property attorney to find out if you need one.
How do I get Permission to use Someone else’s Work?
You ask for it by contacting the content owner.
How do I File a DMCA Takedown on Google?
If you find a picture, video, writing, or content that belongs to you on another website or other Google service, you may submit a takedown notice to Google. What you must do is:
(1) sign in to your Google account.
(2) Collect evidence (take screenshots).
(3) copy the infringing page or activity URL, then file a notice.
Note that if Google removes the content from search results, the content may still be available on social media, other sech engines, or through the website’s URL. Therefore, you must:
- Submit a takedown notice to Google with evidence via your Google account.
- Request the website owner to remove the content on the site and social media.
How do I File a DMCA Takedown on YouTube?
Before you submit a takedown notice on YouTube, YouTube recommends that you first consider fair use and fair dealing exceptions. Then, if the video is outside fair use policy, say someone posted your video in its entirety, you may submit a takedown notice.
To submit a request, you must complete a copyright removal request (see screenshot below).
What to remember:
- Video copyright rights remain even after the death of the creator.
- Attributing the content creator may not absolve a copyright violation.
- If you ignore a takedown notice, the creator or owner may take civil action.
- YouTube has a content ID system that matches the content.
- You may avoid a lawsuit if you get permission from the content owner.
- Some exceptions for copyright infringement include news reports, satire or parody, criticism or review, or research and study.
How do I file a DMCA takedown on Facebook or Instagram?
On Facebook, you may contact the person that posted the video, image, or infringing writing directly. You may also fill out a DMCA takedown form, or you may contact a designated agent. But you must consider fair use.
What to remember:
- Fake copyright claims may result in a civil action.
- Reposting and reuploading someone else’s photos or videos without permission constitutes copyright infringement.
- Compilations may constitute copyright infringement.
- You may take civil action against a person, business, or group that uses your work without permission.
What if the person infringing your work refuses to take it down?
How do I file a DMCA takedown on Tik Tok?
On Tik Tok, you may contact the uploader or complete a DMCA copyright takedown notice. Note that you must provide a license agreement, certificate, or other material that proves that you are the owner of the infringing material. You may do that yourself or through an attorney.
What to remember:
- Tik Tok does not allow users to upload material that violates or infringes someone else’s intellectual property rights.
- Violation of Tik Tok’s copyright policy may lead to account suspension or deletion.
- Fair dealing and fair use apply to Tik Tok content.
- Contacting the infringing individual is faster than the takedown process.
Remember, you may face civil action if you use songs or voiceovers without the owner’s consent.
How do I File a DMCA Takedown on Wikipedia?
Wikimedia will only remove content if the request is valid. That means if the site feels that your request is invalid, they will push back. Remember, Wikipedia is a product of Wikimedia.
That said. You may request user information or content alteration.
How do I file a DMCA takedown notice on Xvideos?
Maltepe Escort LTD, the company that owns Xvideos, requires you to send a takedown notice containing a statement that you have a good faith belief that material posted on their site was uploaded without your consent. Note – In a DMCA notice, you are required to make the statement under the penalty of perjury.