The Digital Millennium Copyright Act (DMCA), passed by Congress in 1998, established what is known as a "safe harbor" for Internet service providers (ISPs), companies that act as gatekeepers for access to the Internet. In effect, the DMCA provides a "Get Out of Jail Free" card for ISPs in regard to copyrighted material that is uploaded by others.
Under its "safe harbor" provisions, the DMCA allows ISPs to escape legal liability if they promptly remove infringing materials upon request. The DMCA sets up a procedure by which an unhappy copyright owner can seek to have an ISP remove infringing works under its "notice and takedown" procedure. This takedown procedure involves three separate steps:
What should you do if you notice your copyrighted work on a website? Filing a Notice of Claimed Infringement can easily be accomplished by any copyright owner. Indeed, you do not necessarily need to hire an attorney to send it for you. Avoiding a lawyer can save money and time, and there is no legal requirement that you use an attorney. Having said that, an attorney's advice can be helpful, and moreover, ISPs may be more fearful of a notice from a law firm, and thus more likely to act upon your notice.
If the notice is successful and the ISP removes the infringing material or disables access to it, there will often be no need to file an expensive lawsuit.
What must the actual notice contain? The notice must:
The notice can be either emailed or sent by postal mail to the ISP.
Below is a sample Notice of Claimed Infringement that can be modified for your purposes.
Notice of Claimed Copyright Infringement
Phone number: _________________
Fax number: _________________
Email address: _________________
Service Provider: _________________
Designated Agent: _________________
Fax number: _________________
Identification of copyrighted work that has been infringed: ___[describe the work you own that has been infringed—for example, if your website has been copied give the name and URL]___.
Identification of infringing material that is to be removed or access to which is to be disabled: ___[include detailed description accurately identifying the material you claim infringes on your copyright in the work identified above—for example, list the website URL and specific Web pages containing infringing materials; if possible, attach copies of the infringing materials]___.
By signing below, I attest that:
I further attest under penalty of perjury that I am either the copyright owner of the referenced material or authorized to act on the copyright owner's behalf.
To protect against the unjustified use of this provision, Congress provided Section 512(f), which permits Internet publishers to bring affirmative claims against copyright owners who knowingly and materially misrepresent that infringement has occurred.
The lesson is that you should not sent out DMCA takedown notices without careful consideration. It is possible that, under fair use or some other copyright exception, the person who published the work had every right to do so.