Responding to a DMCA Takedown Notice

You can get kicked off a platform—and you can be sued—if your content infringes on someone else’s copyright.

The Internet might seem like a great place for free and open exchange. But you aren't free to use content that belongs to someone else on digital formats like videos, blogs, and live streams—unless you've been given permission. The Digital Millennium Copyright Act (DMCA) requires ISPs and other Internet platforms to quickly remove content that infringes on a copyright.

What Is the Digital Millennium Copyright Act (DMCA)?

Congress added the Digital Millennium Copyright Act (DMCA) to federal copyright laws (sometimes called the Online Copyright Infringement Liability Limitation Act) to address copyright infringement that occurs on the Internet.

In a nutshell, the DMCA makes the unpermitted use of someone else's intellectual property on websites, blogs, streaming channels, social media pages, or any other digital formats a theft crime. It not only protects owners of copyrighted material from infringement; it also protects the Internet Service Provider (ISP) and website operator (like YouTube, Facebook, and Twitch) from being sued by the creator of the content if a website user illegitimately posts copyrighted works on their sites.

When a creative work has protection, the work's owner has an exclusive right to copy or distribute that work. For example, the authors of articles, videos, and music are the only ones who can license the work to others, like a music publishing company, which might get exclusive rights to distribute a musician's recording. Works protected by copyright include:

  • written text such as articles and books
  • photographs
  • artwork such as paintings and graphic designs, and
  • music.

What Is a DMCA Takedown?

ISPs and web hosts can discover instances of copyright infringement using their own automated systems (more on that below), or when the owner of the copyright files a DMCA takedown notification. Either way, the DMCA outlines a process for removing materials that infringe on a copyright, using what's called a DMCA takedown.

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 will mute or delete the music, but it will usually 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, and service providers 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.

What Happens When You Get a DMCA Takedown?

Here is an example of the way in which you might get a DMCA takedown and the consequences a service provider would impose.

Let's say you are 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 you've been given one strike for infringing on a copyright by using music that doesn't belong to you.

In this example, the trainer didn't realize he did anything wrong and likely won't repeat the mistake. If he commits no further infractions and agrees to complete YouTube's copyright school, his strike would be removed after six months. If, on the other hand, he continues to post videos using copyrighted music, YouTube would suspend his account after he received 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.

How Do ISPs Find Copyright Infringements?

Violations usually come to the attention of ISPs and web hosts in two ways. The service provider might use its own algorithms to scan for music and videos that appear on its own and other sites, or the creator (or someone else with rights to the material) can file a takedown notification (also called a takedown request or takedown complaint) with the provider.

As long as the request follows rules defined by the DMCA, the ISP or website operator is obligated to remove the material.

It's important to know that ISPs, social media sites, and the like are not required to judge the merits of a takedown notification. They simply act as intermediaries between the person who claims ownership of the material and the person who has wrongfully used it. Indeed, it's entirely possible that you might receive an unwarranted takedown notice.

What If I Receive a Takedown Notice by Mistake?

You have the right to contest a takedown notice when you believe you didn't infringe on a copyright, by filing what's called a counter notification. Before you do, be very certain that you didn't commit copyright infringement.

Takedown notices and counter notifications are legal documents, and if the owner of a copyright takes you to court and you lose, you can end up paying mightily in legal fees and damages.

That said, there have been many instances when takedown notices weren't warranted, and, in some cases, outright lies. A competitor might file a false takedown notice; a takedown notice might be wrongly filed when you used a snippet of a video or of music (in most cases, using a short clip or brief recording of music is allowed under the law); or you might have a reason for using the material that falls under something called the fair use doctrine.

What Is the Fair Use Doctrine?

The fair use doctrine permits the use of copyrighted work without permission from the owner in certain limited ways and for certain limited purposes including:

  • criticism
  • commentary
  • news reporting
  • teaching
  • research

Filing a Counter Notification

Most ISPs and web hosts now have online forms for filing a counter notification. You can also send your notification directly by writing to the ISP or web host. You should include the following information:

  • the date
  • your name, address, email, and phone number
  • a description of the material that was removed, disabled, or muted, its location (URL) prior to the removal, and the date of the removal
  • your statement that you believe the material was removed as a result of a mistake or misidentification. (You can also explain why you believe the material was wrongfully removed.)
  • your consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, and your acceptance of service from the person who provided the takedown notice or an agent of that person.
  • your signature affirming that you understand you've made your statement under penalty of perjury. (You can be criminally prosecuted for lies and misrepresentations.)

Individual ISPs might require additional information for counter notifications sent to them outside their automated systems. You can find their requirements as well as the forms they provide on their websites.

What Happens When You File a Counter Notification?

Just as the ISP or website host is not required to judge the validity of a takedown notification, it's also not required to weigh the merits of your counter notification. Upon receiving a counter notification, the service provider notifies the party that sent the takedown notification and, if they still believe you've infringed on their copyright, they have 14 days to file a lawsuit against you.

If the work's author sues you, you'll have to go to court to defend your position, but if no lawsuit is filed, the service provider must restore your content, and will usually remove any strike that was applied to your account.

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