I got a DMCA notice, What is the Best Course of Action

Copyright has become more complex than ever, especially on the Internet. Most are aware that if you use another’s work without license or permission from the owner, it is considered copyright infringement.

However, at the same time, there are policies such a fair use that give some leeway to bloggers and businesses online to use other’s work as you give credit to the source and so on. Such policies tend to blur the line between copyright infringement and the proper use of other’s work.

For example, there may be times when you find an image you want to use on your website. Even if you get it from a source that has provided permissive license, that doesn’t automatically mean it is safe for you to use.

There is a chance that the source where you got the image from might be using someone else’s work and showcasing it as their own, which will become a problem for you if the actual owner finds you using their image.

Whether you own a website or are looking to acquire one, you must ensure that all the content on it abides by the fair use policy, if it isn’t completely original.

To counter copyright infringement online, the Digital Millennium Copyright Act (DMCA) was introduced in 1996. The act allows individuals, who have noticed their work being used without permission on another’s website, to contact the hosting company and then prompt them to remove the work be it content, image, video, and so on from the website.

Once a hosting company receives a DMCA takedown notice, they will almost immediately take the work down. They will not look into whether or not there was any infringement or not.

Countering a DMCA takedown notice

Countering a DMCA takedown notice

The first thing you may want to do is consult a legal advisor prior to countering the takedown notice. The reason why is because if the party filing the takedown notice with your claim that it was mistakenly given to you, they can file a lawsuit against you to ensure that their content is not used.

Therefore, this is just a guide that explains the steps of countering the notice and shouldn’t be considered as legal advice.

You need to first make sure that your claim is completely true. You will need to swear by the counter-notice you send which will be under penalty of perjury. Which means that if you were to provide any false information, you could be sued for damages.

Why you should file a counter-notice?

The counter-notice is there when site owners feel that the DMCA takedown was done mistakenly. It is submitted to the hosting provider after the content has been taken down due to a takedown notice being served. There is no way of delaying the takedown and your counter can only start once the takedown has occurred.

For this, you will need to first identify the mistake. Some examples of mistakes include: you actually having a license to use the content, complaining party not actually having copyrights of the material, the content is protected by fair-use policy, and the work has an open-source license.

If you are certain that the content falls under one of these premises then you have all the rights to file a counter-notice.

Be sure to consult your lawyer before issuing a counter-notice. Copyright laws are very complex and can go well above the heads of most. Once you have decided to move ahead with the notice, you then write to your hosting provider.

Some hosting providers have specific ways to write a counter-notice so you can contact them. But in general the notice includes the following:

  • The content that has been taken down. You will need to identify where the content was on your website, by providing the URL of the page. This would be mentioned in the takedown notice.
  • Contact information: Full name, address, email address, and telephone number.
  • Statement of good-faith: The statement should basically claim that the content was used in good faith and was removed by mistake as there weren’t any copyright infringement.
  • Consent to a federal court within your jurisdiction from your district within the US. If you are not within the US then you can get the consent from a federal court from the district of your service provider.
  • A physical or electronic signature.

After drafting the counter-notice you can submit it directly to your hosting provider. You can contact your provider to find out the most efficient way to process the notice as some accept it through emails while others may want a physical copy to be mailed to them.

Obviously, sending it through email will get the issue resolved much quicker, but in general, the timeframe varies depending on the hosting company and normally takes 10-14 days before the content is re-activated on the website. However, if the complainant ends up filing a court order against it, the content will not be displayed until the issue is resolved in court siding with the defendant.

It is imperative that when you opt for a counter-notice, you have substantial proof that the DMCA takedown notice was a mistake. If you don’t then you are better off leaving the content off your website. Otherwise, you will be risking a lawsuit, which is a risk not worth taking.

Final words

Once a takedown notice is served, it is vital you seek legal advice. You don’t want to take any steps that can end up harming your business.

DMCA takedowns are serious, which is why it is important that you follow the fair use policy and only host content on your website that you have rights to. Otherwise, there is no point since the content will be taken down once the owner discovers it on your website.

There may be instances where they contact you directly to take it down rather than have the notice served. With copyright infringement laws becoming more and more stringent, it is important you don’t cross the line of fair use and infringement.