This article will provide an overview of the DMCA takedown process, including options if your content has been taken down.
Congress enacted the DMCA to address copyright infringement on the internet. The DMCA requires ISPs and other internet platforms to quickly remove content that infringes on a copyright. In exchange, ISPs and platforms that follow the DMCA’s takedown and counter-notice requirements receive protection from liability for copyright infringement by their users. (Pub. L. No. 105-304 (1998).) (17 U.S.C. 512 (2022).)
For copyright owners, the DMCA takedown is a tool to stop ongoing online infringement of their copyrights.
When you receive a DMCA takedown notice, it means that your ISP, an internet platform (such as YouTube), or a social media site (such as Instagram) has removed content from your website or social media account because it allegedly infringes on someone else’s copyright.
If you have the right legal grounds, you can make them put your content back up.
Each ISP or web host has its own system for removing content that violates a copyright. For example, if you use copyrighted music on a video you post, YouTube might mute or delete the music but leave the video up. Facebook will remove a copyrighted video from your timeline or newsfeed. Twitch will disable a stream from your channel, and so on. The platform will also notify you and, if applicable, provide contact information for the person who lodged the complaint.
While the procedures vary, the one common denominator is that the law requires service providers to swiftly remove material that infringes on a copyright. The DMCA protects these providers from lawsuits by the owners of copyrights only if they promptly remove the offending material.
Account holders who receive DMCA takedowns usually get a warning (referred to as a “strike”) for each infraction. Service providers typically terminate their accounts after a series of infractions (usually after strike three). In the worst-case scenario, users who knowingly and willingly post copyrighted material can be subject to criminal penalties and lawsuits.
Here’s an example of how you could get a DMCA takedown notice and the consequences a service provider would impose.
Let’s say you’re a personal trainer who operates a YouTube channel that offers subscribers daily workout routines. You think you can get more subscribers if you amp up the energy of your video, and you decide to add a few of your favorite songs by your favorite group to one of your routines.
Quicker than you can say, “Give me five more reps,” you get a notice from YouTube telling you it has muted the music on your video and that you’ve been given one strike for infringing on a copyright by using music that doesn’t belong to you.
In this example, you didn’t realize you did anything wrong and you likely won’t repeat the mistake. If you commit no further infractions and agree to complete YouTube’s copyright school, your strike would be removed after six months. If, on the other hand, you continue to post videos using copyrighted music, YouTube would suspend your account after you receive three strikes.
Procedures used by other providers vary, but they usually follow a similar process of warnings and include terminating the accounts of repeat offenders.
You have two choices when your content is taken down:
If you believe that your content wasn’t infringing on the other party’s copyright, you can dispute the takedown by filing a “counter-notice.” When the ISP or platform receives your counter-notice, the other party gets 14 days to file a copyright infringement suit against you. If no suit is filed, the ISP or platform is required to reverse the takedown and restore the content to the site or account from which it was removed. (17 U.S.C. 512(g)(2) (2022).)
You file a counter-notice when you believe that the takedown was improper because the content in question doesn’t infringe the other party’s copyright. Your content might not be infringing for a number of reasons:
The law imposes no deadline for submitting a counter-notice, but it’s good practice to file as soon as you are confident that your counter-notice has merit, so that you can get your content back up as soon as possible.
Most ISPs and web hosts now have online forms for filing a counter-notice. If the entity that you’re dealing with has an online form, use it. If it doesn’t, you can use the sample counter-notice form from the U.S. Copyright Office, or you can respond in a letter, so long as it contains the information listed below.
If the company in question doesn’t have an online form, the takedown notice you received should contain contact information for submitting a counter-notice. If the takedown notice doesn’t have this information, check the website of the ISP or platform.
Your counter-notice should contain the following information:
Providing a reason why you think your use was within bounds is optional—all that’s required is that you state, under penalty of perjury, that you have a good faith belief that the takedown was the result of mistake or misidentification by the copyright owner. If you do provide a reason, your reason will be conveyed to the copyright owner. Whether giving a reason is a good idea in your particular case is a matter of legal strategy that you or your lawyer will need to determine.
Some ISPs and platforms might require more information than what’s covered in the list above for counter-notices sent to them outside their automated systems. You can find their requirements as well as the forms they provide on their websites.
As with a takedown request, the ISP or website host isn’t required to weigh the merits of your counter-notice. Upon receiving a counter-notice, the service provider notifies the party that sent the takedown request and informs them that they have 14 days to file a lawsuit against you if they still believe you’ve infringed on their copyright.
If the other party doesn’t file a lawsuit within the 14-day period, your content goes back up and the service provider should remove any “strike” that was applied to your account.
Be careful about this aspect of DMCA counter-notices: Because of the 14-day deadline, filing the counter-notice can spur the copyright owner into filing a lawsuit.
If the copyright owner sues you, you’ll have to go to court to defend your position. Be aware that copyright infringement suits are expensive to defend against and damages can be steep if you lose. If you think that the copyright owner is likely to sue if you file a counter-notice, it would be wise to consult a copyright attorney or a business attorney with copyright expertise to determine your best strategy.
The end of the DMCA takedown and counter-notice process isn’t necessarily the end of the legal dispute. If you were infringing on the other party’s copyright, the DMCA takedown stopped your infringement. But you’re still potentially liable for the infringement prior to the takedown.
Filing a counter-notice and having your content restored doesn’t mean that you haven’t committed copyright infringement. Courts decide copyright infringement cases—not ISPs and other internet platforms. Again, ISPs, websites, and platforms don’t judge the merits of a takedown notice or counter-notice.
Also, even if the other party didn’t file a lawsuit in the 14-day period after your counter-notice, they retain the right to do so in the future. The only consequence of not filing in the 14-day period is that your content will be restored. Failing to file an infringement suit in the 14-day DMCA period isn’t a waiver of the right to sue for infringement.
If you’re unsure of how to respond to a DMCA takedown notice that you receive, or if you are worried about potential liability for copyright infringement, it’s a good idea to consult a business or copyright attorney.
]]>Your privacy policy must describe the user information that your company collects. Here are some common categories:
Personal information
Your policy should disclose that your site will collect and maintain personal information provided by its users, including their names, addresses, mobile telephone numbers, email addresses, and so forth. It should also clarify that the amount of information they provide is completely voluntary; however, providing less information might limit a user’s ability to access all of the site’s features.
Usage and analytics data
Let the user know whether your company collects usage information in order to assess how users access and utilize the site. This data is valuable to the company for various internal purposes, including troubleshooting and improving the site’s functionality. If applicable, feel free to disclose that the information you collect might include the user’s Internet service provider, type of web browser or operating system, IP address, viewed pages, time and duration of site visits, crash logs, and other information relating to site usage.
Cookies
If applicable, your privacy policy should disclose that your website uses cookies in order to enhance your site’s functionality. Here is a standard provision relating to user options regarding cookies:
“Most web browsers are initially set up to accept cookies. You can reset your web browser to refuse all cookies or to indicate when a cookie is being sent. Please note, however, that certain features of the site might not function if you delete or disable cookies. THE SITE’S COOKIES DO NOT AND CANNOT INFILTRATE A USER’S HARD DRIVE TO COLLECT ANY INFORMATION STORED ON THE HARD DRIVE.”
Text message data
Some websites permit users to either transmit text messages to the company (for support purposes, for example) or between users (on dating sites, for example). If this is applicable to your site, then you should notify the user that the company reserves its right to retain this information indefinitely.
Your website’s privacy policy should also tell users how your company might utilize their data. Here are some possibilities.
Shipping information
If your company sells products online, it must collect user information in order to ship the product or otherwise make it available to the user.
Customer service and follow-up
Whether your company provides a product or service, it needs user information for customer support services, including dealing with guarantees, returns, repairs, replacements, rescheduling, cancellations, billing and payment issues, or other matters. Your company might also collect user information for routine follow-ups in order to assess customer satisfaction.
General announcements
Your website might use personal information for periodic general announcements to users. These can include notifications, updates regarding the company or the site, marketing communications, and so forth.
Third party service providers
Your company might need to use personal user data in connection with website maintenance, upgrades, new releases, or analytics data review or compilation. Your privacy policy should make it clear that your company will be required to share user data with any third-party service providers that it might engage to assist in these efforts. Similarly, your company might have to share user information in connection with third-party marketing or advertising services. However, your company should be responsible for ensuring that these service providers employ adequate security measures with respect to user data.
In addition to the administrative and marketing purposes discussed above, your privacy policy should further describe any other instances in which it might share user information. Feel free to start with the following general statement:
“As a general policy, we use personal information and message data for internal purposes only. We do not sell or rent information about you. We will not disclose personal information or message data to third parties without your consent, except as explained in this Privacy Policy.”
Note that if your company is subject to any industry-specific regulations regarding the sharing of user information (for example, the protection of patient information under HIPAA guidelines), then you should further reassure the user that your company will adhere to such regulations.
Sharing with affiliates or acquirers
Your company must be permitted to share user data with its affiliated entities, including parent companies and subsidiaries. Furthermore, if the company participates in a merger, stock purchase, asset purchase, or other acquisition, it will be required to share user information with the purchaser or surviving entity.
Compliance with laws
Your company might be required to disclose user information in order to comply with any court orders or applicable laws. The following is a standard provision that addresses this issue:
“The Company cooperates with government and law enforcement officials to enforce and comply with the law. We may therefore disclose personal information, usage data, message data, and any other information about you, if we deem that it is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process (such as a subpoena or court order), or enforceable governmental request; (b) enforce the Terms of Use, including investigation of potential violations thereof; (c) detect, prevent, or otherwise address fraud, security or technical issues; or (d) protect against harm to the rights, property or safety of the Company, its users or the public, as required or permitted by law.”
Your privacy policy should assure users that the company will use necessary measures to protect the security of their data. However, the policy should also emphasize that it’s impossible for the company to completely guarantee that user data will be immune from malicious attack or compromise; as such, the users should understand that their transmission of personal data is always at their own risk.
Assuming that your company will collect and store all user data domestically, your privacy policy should notify users that their information will be subject to the laws of the United States of America, regardless of the country from which their data originates.
The user should be permitted to correct, update, or change their personal information, or adjust or cease the frequency with which they receive company communications. The user should also have the ability to disable their account, in accordance with the Terms of Use. The privacy policy should provide a methodology for the user to effectuate the foregoing.
Notify the user that your company might make changes to its privacy policy from time-to-time and that it should periodically revisit the policy for any updates. Your company should also make an effort to notify its users of any policy changes, or require that users acknowledge updates by checking a box or pressing a button. In any case, users who continue to interact with the site following a revision of the company’s privacy policy will automatically be subject to the new terms.
Finally, your privacy policy should remind the users to carefully protect the personal information that they submit on the site — including their passwords, usernames, location, images, and videos — so that third parties can’t manipulate their accounts or assume their identities. If your site permits users to communicate with each other or see each other’s usernames or other information, then remind the user not to disclose any sensitive information in the public domain.
]]>You may not freely use someone else's work simply because it has been posted on the Internet (a popular fallacy). Whether you find the material online or off, permission is generally needed to reproduce text, artwork, photos, and music. It is wise to operate under the assumption that all material is protected by either copyright or trademark law unless you have good reason to know that it is not.
Using copyrighted work. As a general rule, any original work -- whether text, visual art, photos, or music -- is protected by copyright law, which means that you may not reproduce it without permission from the copyright owner. Giving credit or thanks to the copyright owner does not change that; you are not allowed to reprint (or distribute, adapt, perform, or sell) the work without the owner's authorization.
Using trademarks. Similarly, if your site sells products or services, permission is often needed to reproduce a trademark, including any word or symbol that identifies and distinguishes a product or service from others -- such as the word "McDonald's," the distinctive yellow arches, or the Ronald McDonald character. (If your site is informational -- for example, a blog about business practices -- permission is not needed to cite another company's trademark.)
Copyright or trademark infringement. Reproducing someone's copyrighted work or trademark without their permission is known as infringement, and it leaves you vulnerable to lawsuits from the copyright or trademark owner. Lawsuits are even more likely if you stand to make any money off the use, such as posting copyrighted song lyrics on your site to increase traffic and attract advertisers.
For a comprehensive discussion of trademark and copyright law, see Nolo's Copyright and Trademark Resource Centers.
Many companies offer artwork, photos, and other materials for reuse -- alternately called clip art, royalty-free work, copyright-free work, shareware, or freeware. Do not assume that these materials can be distributed or copied without limitation. To be certain that your intended use is permitted, read the terms and conditions in the "click to accept" agreement or "read me" files that usually accompany such materials.
Example: One company failed to honor the terms of a click-wrap agreement and was found liable for illegally distributing three volumes of software clip art.
Many webmasters manage personal websites or small organization sites -- for example, a site for a school tennis team. Copyright laws do apply to material used on these small or personal uses -- even if it's just the reproduction of a photo taken by a club member, a friend, or a relative.
Getting explicit permission from the copyright owner is the best way to avoid a lawsuit. However, if you are confident that the copyright owner has consented to the use, particularly if the copyright owner is a friend or relative, oral permission may be fine. Some sort of written consent (even an email) is preferable because it will be easier to prove if a dispute arises.
Fees for permissions (often called "licensing fees") are often arbitrary and can range from $50 to several thousand dollars. A licensing fee may be based on:
Before you seek permission to use material on your website, have ready your website statistics that will most likely affect the fee.
You can save money on fees by keeping your requests as narrow as possible. For example, don't ask for "worldwide rights, all languages" if you need rights only to the English version of a song. And you can sometimes save money by acquiring multiple items from one source. In some cases, you may also be able to lower your fees by offering to pay up front instead of waiting 30 or 60 days.
Linking, framing, and inlining are common methods of connecting to information at other websites, and all carry the potential for getting into permissions trouble. Here's a brief description of each of these methods and what to watch out for.
Linking. Including links to another website on your website is usually risk-free. Links to infringing materials -- for example, a pirate site -- may create liability for you.
Framing. Framing is the process of dividing a Web page into separate framed regions and displaying the contents of someone else's site within a frame at your site. Generally speaking, site owners don't like having their content framed at another site, particularly without permission. At least one court has considered framing to be copyright infringement.
Inlining. Inlining (sometimes referred to as "mirroring") involves incorporating a graphic file from one website onto another website. In 2003, a federal court of appeals ruled that inlined links to thumbnail images was permissible as a fair use. However, the law is not clear as to whether inlined links to full sized images is permissible.
For more information, see Nolo's article Linking, Framing, and Inlining.
"Fair use" is a copyright doctrine which, in its most general sense, allows copying of copyrighted material done for a limited and "transformative" purpose -- for example, to review a text, make fun of a pop song, or quote a portion of a novelist's work.
The difficulty in claiming fair use is that there are no "definites," only general rules and varying court decisions. If you believe that your use qualifies but the copyright owner disagrees, you may have to resolve the dispute in a courtroom.
To learn more about when a use is likely to be considered a fair use, see Nolo's article The 'Fair Use' Law: When Use of Copyrighted Material is Acceptable.
If someone complains that you are using material on your website without proper authorization, you should immediately remove that material. Even if you believe the use is legal, remove the material while you investigate the claim and, if necessary, talk to a lawyer.
Courts often respond favorably to attempts to "contain" the damage. In fact, a 1998 law states that an Internet Service Provider (ISP, the company that hosts the website on its computer server) can avoid liability by following certain rules, including speedy removal of the offending material.
On the other hand, continuing to use material after being notified that you are violating someone else's rights may aggravate the claim and increase your chances of having to pay money to the owner of the work.
A disclaimer is a statement denying an endorsement of or affiliation with another site or company. For instance, if your website posts reviews of software and offers links to resellers, you might post a disclaimer in to the effect that your site does not endorse and is not affiliated with any of the software manufacturers or resellers listed at your site.
A disclaimer is not a cure-all for infringement, but, if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor that limits damages in the event of a lawsuit.
The most useful sources for licensable works and for permission information are copyright collectives or clearinghouses. These are organizations that organize and license works by their members. Here are a few examples of sites that license or provide permissions for various types of works:
Even if you don't license from these sources, you can often find valuable research information in the event you need to speak with a songwriter, artist, or photographer.
To learn more about getting permission to use materials online, see Getting Permission: How to License & Clear Copyrighted Materials Online & Off, by Richard Stim (Nolo).
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