Copyright law protects artistic works, but it can also protect much more, such as marketing materials, computer software, and certain information on a company webpage. The versatility of copyright law makes copyright protection a useful tool for entrepreneurs, and the Digital Millennium Copyright Act (“DMCA”) provides entrepreneurs with a process to prevent web-based copyright infringement.
What is Copyright? What is the DMCA? 
Copyright law protects original works of authorship as soon as the author fixes the work in a tangible medium of expression that is at least semi-permanent. Items that are copyrightable include but are not limited to: literary works, music, pictures, and movies. Additionally, a copyrightable work does not need to be registered with the U.S. Copyright Office to receive the legal protections of the DMCA.
The DMCA is an extension of copyright law that clarifies digital media rights and creates the notice and takedown system, which allows copyright owners to inform online service providers about infringing material so it can be taken down. To incentivize service providers to participate in the notice and takedown system, service providers are granted immunity from certain infringement liability, provided they participate in the notice and takedown system and abide by other conditions.
Notice and Takedown System
Imagine you posted copyrightable material on your company website, such as a video describing your product or instructions on how to use the product. Now imagine that your direct competitor took that material, changed it slightly, and posted it on their own website. This is upsetting, and it is also copyright infringement. Thankfully, the DMCA’s notice and takedown provisions create a process that allows you to send a takedown notice to a service provider, requesting the provider to remove the infringing materials. A service provider can be an internet service provider (e.g., Comcast), website operator (e.g., eBay), search engine (e.g., Google), web host (e.g., GoDaddy) or other type of online site-operator.
Before sending a takedown notice, it is important to conduct a good faith investigation of the infringing activity to ensure that your rights are being violated and that the activity does not constitute fair use of the material. If a copyright holder neglects to consider fair use before sending a takedown notification, they could be liable for damages. Further, you will want to ensure that your content is copyrightable, or it will not be protected by the DMCA. Once you determine that your rights are being violated, you can proceed with drafting your notice.
Step One: Determine Who to Send the Notice To
Takedown notices are sent to service providers, rather than the subscriber, user, or other person who is ultimately responsible for posting the infringing material. This requires you to determine which service provider is hosting the website that contains the infringing material. If you are unsure about who the web host of a site is, you can look up the IP address of the site with a free online tool, such as Domain Tools or Whois search.
Step Two: Determine Where to Send the Notice
Many service providers offer easy-to-use online tools to submit claims directly to the service provider through an online DMCA takedown form. Alternatively, the Copyright Office has created a directory of designated agents where you can look up the service provider to determine where to send the takedown notice.
Step Three: Drafting the Notice
There are multiple elements that must be included in a takedown notice. If these are not included, the service provider may refuse to take down the material. These elements include:
- Signature of the copyright owner or the person authorized to act on their behalf.
- Identification of the copyrighted work which was infringed, the infringing activity, and the location of the infringing activity.
- Contact information of the notice sender, including an email address.
- A statement that the notifier has a good faith belief that use of the material is not authorized by the copyright owner, its agent, or the law.
- A statement, made under the penalty of perjury, that the information in the takedown notice is accurate and that the notice sender is authorized to act on behalf of the copyright holder.
Step Four: Send and Wait
Once the notice is sent, the service provider will notify the user responsible for the infringement and expeditiously take down the material. This user can then choose to send a counter notice or do nothing.
Counter Notice
If you or another user receive a takedown notice, and in good faith believe that the activity is not infringing, a counter notice may be filed with the service provider. The counter notice explains why the user disagrees with the copyright owner and must contain most of the same elements included in the takedown notice: signature, identification, and contact information. Additionally, the counter notice must include a statement of good faith belief that the infringing material was removed as a result of mistake or misidentification. Last, the counter notice must include consent to be sued in Federal District Court in the district in which your address is located.
After receiving a counter notice, the service provider is obligated to forward that counter notice to the party who sent the original takedown notice. Once the service provider forwards the notice, it must restore the material within 10-14 business days, unless it receives notice that the copyright owner filed a lawsuit against the alleged infringer.
Key Takeaways
Protecting your copyrights as an entrepreneur is important business. If you notice that someone is infringing on your copyrighted material online, it is important to act quickly to ensure that this infringement is stopped in its tracks. The DMCA notice and takedown process provides a quick and relatively easy method to deal with online infringement. This post provides a simplified overview of the process, but if you have any more questions, the U.S. Copyright Office serves as a great resource to seek more information.
Sources:
- Jeanne C. Fromer & Christopher Jon Sprigman, Copyright Law Cases and Materials (4th 2022).
- https://www.mmmlaw.com/media/elements-of-a-dmca-takedown-notice/
- https://www.copyright.gov/dmca/
- https://copyrightalliance.org/education/copyright-law-explained/the-digital-millennium-copyright-act-dmca/
- https://kinsta.com/blog/dmca-takedown-notice/
Image Sources
Hi Coryn – Professor Skladany would be so proud of you! I think you did a great job of simplifying this multi-step process for copyright owners. Great job flagging the fair use consideration as it is not clear from the takedown provision itself! Some legal jargon you have used might be unfamiliar to new entrepreneurs, and I think your title is missing a “to.” This was a good read!
– Pranita
This was a very interesting post. I did not know much about copyrights before reading this and I now feel knowledgeable enough to know what action steps if a party is affected by this issue. The post is well-written and clear. Good Job!
Hi Coryn!
I think this is a really fantastic article. In our present-day, technologically minded era, copyright is more important than ever before. As content-creators produce original their works of authorship, copyright infringement becomes more prevalent – one example I can think of would be copyright infringement claims on YouTube. I think once a creator has three copyright strikes, their YouTube account gets taken down. One suggestion I have for your article is using a couple of more images to help guide your reader. The tone of your blog post was engaging and down-to-earth while still being very informative.
Overall, great job!