How do I use a takedown notice for Copyright infringement?
A copyright is a legal power that gives the creator or author of a literary, artistic, musical, or other creative work the sole right to publish and sell that work and the exclusive right to control the reproduction of the work. Violation of a copyright is infringement and the owner of the copyright is entitled to take action.
The unmonitored freedom that exists on the internet lends itself well to copyright infringement. If you created a work of art and you find that art printed on a t-shirt and advertised for sale on the internet without your permission, you have the right to protect your ownership of your art. Likewise, if you create an original piece of music or writing and you find it attached to another’s website without your permission, you have rights.
One of your rights is to demand that the online or internet service provider (“OSP” or “ISP”) take down the infringing advertisement or reproduction. The demand is called a “DMCA take down notice” and is directed to an OSP who wants to avoid being an infringer themselves (“DMCA” is the Digital Millennium Copyright Act). The Act created Section 512 of Title 17 (Title 17 is Federal copyright) and it gives owners of copyrights the power to persuade an OSP to take down any images or content posted on its network that infringes on a protected copyright.
The definition of an OSP for purposes of the DMCA is “a provider of online services or network access, or the operator of facilities therefor.” 17 USC §512(k)(1)(B). This broad definition includes sites that allow users to post user-generated content such as web hosting companies, blogs, discussion forums, and retail sales. To locate the name and contact information for the OSP, search the government list of OSPs or use a web-based search engine like WHOIS.
If the OSP takes down the infringing images or content as a result of receiving a take down notice, the OSP may be exempt certain from liability for copyright infringement by its users. In order to be exempt the OSP must satisfy certain conditions, including the following:
- The OSP had no actual or constructive knowledge of infringing behavior;
- The OSP gained no financial benefit directly attributable to the infringing activity; and
- When it receives proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.” 17 USC §512(c)(1).
A proper DMCA takedown notice is typically in the form of a letter but must include these specific pieces of information:
- The signature of the copyright owner or a person authorized to act for the owner (like the owner’s attorney);
- Clear identification of the work that is infringed or a representative list of such works being infringed;
- Identification of the online material that is infringing that you demand to have taken down or blocked, with sufficient identifiers to enable the OSP to locate the material;
- Contact information for the owner so that the OSP may contact you, including an address, phone number, and an email;
- A specific statement that the copyright owner has a “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”; and
- A specific 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.” 17 USC §512(c)(3).
If the OSP refuses to take down the infringement identified in your letter, you may be entitled to a cause of action and criminal sanctions. You may also be entitled to a cause of action against the user who posted the infringing material on the OSP. If your notice letter doesn’t resolve the problem, it’s time to contact an attorney that specialized in intellectual property law. At Immix Law Group, we are experienced in protecting client’s intellectual property including copyrights. Many times, we are able to secure our client’s rights without the need for litigation. The first step is to find the infringement and take the initiative to protect your rights, such as by sending out a DMCA take down notice.
About the Author: Dayna Christian
Email: firstname.lastname@example.org | Direct: (503) 802-5537
Having handled hundreds of civil commercial and tort matters, and having tried over 70 cases to verdict, Dayna knows her way around a courtroom. She brings this experience to her clients while also advising them on a range of business practice topics designed to avoid litigation and leading them through disputes when litigation is unavoidable.