Protecting Your Work
Online Using the DMCA
I have
recently been asked a number of times about what to do if someone is distributing
your work online without your authorization. It is a great question, and there
are a few options.
Obviously, you
can reach out to the person distributing your art online and ask them to take
it down. Frequently, this will be enough, and it is an approach that you can
take in just about every instance where someone has posted your work online. The
potential downside to this option is in how the person reacts. Sometimes, he will
ignore you, and you will have to resort to the options below. Sometimes, he will
engage you in a conversation about what he has done and what you are doing, and
this can be an opportunity to educate him about your work and your rights.
Sometimes, however, he will be defensive and argue with you, which can be
stressful and an unproductive drain on your time. Even with the downsides, this
is still a good option in many cases.
Another option,
and the harshest, is to sue him. If someone is using or posting your work online
without your permission, it is likely to be a copyright infringement. However,
this can take a long time to wind through the courts, cost a lot of money up
front, and, depending on the circumstances, it can make you look like a bully.
My favorite
option to remove infringing content from the internet is to send a Digital Millennium
Copyright Act takedown notice. Depending on where the work is posted, sending a
DMCA takedown notice is the easiest way to enforce your rights. The DMCA was
enacted in the late 1990s, and it includes a provision that limits online
service providers’ liabilities for copyright infringement if they register with
the Copyright Office a designated copyright agent to receive notice of
infringement, post the information on their website for the public to access,
and if they promptly respond to proper takedown requests sent to this copyright
agent.[1]
Online service providers are not required to take down material that is alleged
to be infringing. However, if they receive a takedown notice and do not act,
then they have been placed on notice of infringing materials, and they may face
liability as a secondary infringer.[2]
Due to the way this law is structured, online service providers almost always
take down allegedly infringing material as soon as they are notified.
Personally, I find this method to be one of the easiest ways to quickly remove
infringing material from the internet, particularly if one website has a lot of
infringing materials on it.
For example, if you are an
online marketplace like Etsy where people are uploading and selling homemade
items, you would not want to be held liable for copyright infringement for any
infringing items being sold on your website by your users. So, you would
register a copyright agent with the Copyright Office, usually someone in your legal department, and you would list the copyright
agent’s email address in an easily accessible area. If your copyright agent receives a
proper takedown notice from someone who believes their copyrighted work is being infringed, and your website acts quickly to remove or disable the
allegedly infringing content, then your website would not be found liable for secondary
copyright infringement.
In order to send a DMCA takedown notice, you must send the following information in writing to the designated agent of the service provider:
In order to send a DMCA takedown notice, you must send the following information in writing to the designated agent of the service provider:
(i)
“A
physical or electronic signature of a person authorized to act on behalf of the
owner of an exclusive right that is allegedly infringed.
(ii)
Identification
of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works at a single online site are covered by a single notification,
a representative list of such works at that site.
(iii)
Identification
of the material that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service provider
to locate the material.
(iv)
Information
reasonably sufficient to permit the service provider to contact the complaining
party, such as an address, telephone number, and, if available, an electronic
mail address at which the complaining party may be contacted.
(v)
A
statement that the complaining party has a good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner,
its agent, or the law.
(vi)
A
statement that the information in the notification is accurate, and under
penalty of perjury, that the complaining party is authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.”[3]
Once you have sent a takedown notice containing
all of the information above to the designated agent, a site will typically
remove or disable the allegedly infringing material in a few days. The alleged
infringer does have the ability to challenge your takedown and have the
material reposted, but if it is clearly an infringement, they won’t.
The DMCA
takedown notice is an effective and quick way to protect against the
unauthorized distribution of your work online. Once you know how to use it, it
will quickly become your favorite method of removing infringing material from
websites.
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