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Combating Copyright Infringement: DMCA Take Down Notices


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: January 22, 2011 @ 8:05 am
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The theft of intellectual property rights enabled by the Internet is growing to alarming rates. The primary concerns are digital piracy and the sale of counterfeit goods, and even medicines. For example, see Counterfeiting Costs US Businesses $200 Billion Annually and US Trade Representative Issues Annual Report on Global IP Rights. But we shouldn’t fool ourselves and try and pretend that the lack of respect for intellectual property rights is limited to those who seek to share movies, music or make a buck selling knock-off products. Everyone who produces original content on the Internet is at risk of having that content stolen; simply cut and pasted onto some other website or blog. Even if it is not passed off as original content and you do get “credit” the copyist is using your work for their own benefit. They are stealing eyeballs, diverting traffic and likely costing you money. At the very least, they are free riding, which is a hard pill to swallow.

Mark Monitor, a leader in enterprise brand protection, recently released a study titled Traffic Report: Online Piracy and Counterfeiting. In this report some mind boggling statistics are revealed.

  • The top-three websites classified in the digital piracy piracy category collectively generate more than 21 billion visits per year.
  • North America and Western Europe are the host location for 67% of the sites classified under the digital piracy category.
  • The combined traffic to the 48 sites selling counterfeit goods is more than 240,000 visits per day on average or more than 87 million visits per year.
  • The combined traffic to the 26 sites selling counterfeit prescription drugs is more than 141,000 visits per day on average or more than 51 million visits per year.
  • The combined traffic to the 21 e-commerce sites selling counterfeit luxury goods is more than 98,000 visits per day on average or almost 36 million visits per year.

There is no doubt that copyright infringement and trademark infringement is rampant and increasingly difficult to police thanks to the disparate nature of the Internet.

There are things you can do, however, if you are a creator of original content online.  In the United States the Digital Millennium Copyright Act, more commonly known as the DMCA, gives copyright owners the right to send “takedown notices” to those who are infringing upon the owner’s copyrights. Essentially, if someone has take your original work and posted it to their website without your approval you can pressure the web host company to take down the material.  Web hosts enjoy broad immunity from lawsuit in the United States for copyright infringement provided they act swiftly to remove infringing content once they are made aware of the existence of the content by the copyright owner.  The loss of this immunity makes web hosting companies act exceptionally quickly.  DMCA takedown notices are extremely successful.

What you have to do to send a notice isn’t particularly difficult, but the entire process can be time consuming, particularly for those new to the process.  On top of that, who really wants to have to set out to send a DMCA takedown notice?  I know from experience that it always seems that someone has copied your work shamelessly and is infringing when it is most inconvenient.  It is never a good time to be diverted from your business, but taking the time to prepare and send the letter is time not spent on your core business.  I am always amazed at how much time it eats up when I have to send a DMCA take down notice, which I have to do about once every other month it seems.  And when I am sending those letters I am rather mad and not in the best frame of mind, so it eats at me for even longer.

There are some services that have started to help individuals and businesses streamline their DMCA take down processes, including DMCA.com.  DMCA.com provides do-it-yourself help for DMCA take downs starting at $10 per month.  They also offer what they call Professional Take Downs, where you give them some basic information and they do it for you.  If you use a Professional Take Down it runs about $199 and comes with a money back guarantee which promises your content will be taken down within 5 days.  Not that you shouldn’t use a lawyer, but I do think it is fair to say that a lawyer would charge more than $199.  I know I would.

In addition to the do-it-yourself and professional take down packages, DMCA.com also allows you to post a free badge on your website which lets people know that the site is protected by DMCA.com, that you are claiming all rights to your copyrighted work, and to let them know about the requirements of the Digital Millennium Copyright Act.  Perhaps this will scare some folks away, which is always nice.  It is free, and free is always good.

DMCA.com even says that they can help those who are seeking to have personal photos, videos or emails posted without permission removed. They tell me they have been very successful at getting this kind of material removed.

It is unfortunate that we need to have laws the regulate what happens when someone posts infringement material on the Internet, but the truth is the Internet largely remains a wild-west in the mind of most. Things ordinary people would never say or do in the real world are done and said on the Internet without regard. Whether you want to use a service like DMCA.com or you just want to do it all on your own doesn’t matter. Just know that the Digital Millennium Copyright Act is there to help you and is a very effective way of getting things removed from the Internet. Just don’t abuse the process because if you lie and send an unwarranted take down notice there can be negative consequences.

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Posted in: Copyright, Gene Quinn, Internet, IP News, IPWatchdog.com Articles, Trademark

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

13 comments
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  1. Before we all “Let’s go Crazy“, does DMCA review for the allowable defense of Fair Use?

  2. @BD

    This is a case on fair use. I found it and thought it may make good reading.

    Lenz v. Universal Music Corp.

    The short: It was over copyright music used in a home-made video that was uploaded to YouTube.

  3. BD-

    That is the $64,000 question, isn’t it. There are counter-notifications under the statute. See:

    http://www.copyright.gov/title17/92chap5.html#512

    For non-lawyers (or lawyers looking for a cheat sheet) you might find this summary by Google helpful:

    http://www.google.com/dmca.html

    If there is a counter-notification the host can replace the material, but the requirements of the counter-notification are substantial. There is a great outcry in the industry at the moment that a lot of these DMCA take down notices are not legitimate and are not taking fair use into consideration. I hear that with respect to the entertainment industry primarily.

    Speaking for myself only, as the creator of a lot of original content I know there is a big problem and DMCA take down notices really work. Without them there would be little or no hope to get blatant copyright infringement resolved. There are those out there that simply cut and paste entire articles. There is no way that is fair use. Historically there was a popular belief that all you needed to do was cite the first source and you could copy and paste everything. That is not the law and by now hard to justify anyone believing that. There is a lot of blatant copyright infringement out there.

    Fair use is an important issue, but like always if you are going to rely on fair use then you need to be prepared if the copyright owner believes your use is not fair. That means you need to be prepared to fight in court if the copyright owner wants to move forward. The DMCA counter-notification to get material put back on the Internet makes it easier to gain jurisdiction over the defendant. They also have to verify under the penalties of perjury that what they have done is not copyright infringement, which is quite impossible in the cut and paste situation.

    Thus, I think the DMCA does have protections in place. Those who want a more robust fair use defense will say it isn’t enough, but fair use is a defense to copyright infringement. It always has been a defense, and as far as I can see nothing in the DMCA limits that defense.

    -Gene

  4. New Here – Yes, good catch – that’s why I used that phrase in quotes.

    That is not the law and by now hard to justify anyone believing that.

    Except that (unfortunately) it is not hard. People seem to have resiliency in maintaining beliefs that defy understanding of the law.

    Perhaps I should cut back on the vitamins and nutrients in my Kool-Aid?

  5. @BD

    Yes, sorry, I didn’t look into the name of the music the first time, now see you were referencing the song in that case.

    Thanks.

  6. Gene,
    BD may have been speaking of DMCA.com, and whether or not they take fair use into consideration of if they just sent out boilerplate letters with the information you send them. If he didn’t ask that, I will.

    Also, your badge seems to be a bit misleading: “All original content on [ipwatchdog-page-here] is created by the website owner,”
    You would be the website owner, but not all original content is created by you. You have other writers who are presumably not you, and while I can’t confirm that anyone who is not me is not you, I know I am not you and that I write comments here, making that untrue.

    “including but not limited to text, design, code, images, photographs and videos are considered to be the Intellectual Property of the website owner, whether copyrighted or not”
    The whether copyrighted or not seems to be an odd statement. Since the US belongs to the Berne Convention, anything that can be copyrighted is copyrighted once in a tangible form (and anything that’s on this website is in a tangible form). If you are posting for example raw data, which is not copyrightable in the US, it would not be your intellectual property no matter how much effort you put into it.

    And in you comment, you said:
    “They also have to verify under the penalties of perjury that what they have done is not copyright infringement, which is quite impossible in the cut and paste situation.”
    Out of curiosity, does the party filing the DMCA complaint have to make a similar verification? I could see a defendant in a gray area not making such a verification because of the legal consequences, but does copyright holder have to think before they act as well?

  7. Bobby-

    Point taken regarding the DMCA.com notice. I removed it from my pages.

    Those sending DMCA take down notifications do need to make a similar statement indeed. It is somewhat easier for those looking to have content taken down though probably. Fair use is still “copyright infringement” in the first instance. Fair use is a defense that excuses copyright infringement, so the copyright owner doesn’t really have to take fair use into consideration when sending DMCA take down notices, or at least that is my opinion. I, however, have never sent a DMCA take down notification unless it is a cut and paste job. I have sent other messages from time to time when I think someone is copying too liberally, but haven’t had to resort to DMCA take down in close calls. I have just used it when it has been egregious.

  8. Here is a similar story

    We just recently noted the growing trend of some DMCA notice filers to claim that the notices themselves are covered by copyright and thus should not be sent on to ChillingEffects.org, the clearinghouse for DMCA takedowns. It’s highly questionable whether or not such DMCA notices are actually covered by copyright, but we hadn’t seen anyone actually challenge the claims. However, TorrentFreak has an article on a slightly different, but related situation, where it appears that Fox sent a DMCA takedown to Google, ordering it to block links to a DMCA takedown Fox had sent Google earlier.

  9. I am certainly not well-versed in law, but it seems that there are serious defects in the copyright system–especially for small, individual holders of copyright as opposed to large corporations.

    I recently copyrighted a photo. No one to my knowledge has violated the copyright, but lets’ suppose they did. The copyright is supposedly a protection for the individual’s work. One must pay for the registration. Yet, someone infringes on my copyright, it seems that the government will actually do little or nothing to seek justice for me. I may be mistaken, but I understand that I myself must initiiate a law suit, and that the government takes no really active role. For an individual–as opposed to a large corporation which has scads of money–it is an extremely expensive proposition. Even if winning the case, the legal fees borne by the litigant would far outweigh any amount–if any–received in settlement. Thank you for considering my rather lengthy question and statements.

  10. Nexcess.net did a really good infographic to explain the takedown process
    http://blog.nexcess.net/2012/02/22/dmca-process-infographic-flowchart/

  11. Thanks for this. Perfect.

    PS: In the first sentence of the last paragraph I think “It is unfortunate that we need to have laws the regulate….” should read “….to regulate”. Right?

  12. That’s the beauty of the DMCA that allows people to fight back against content thieves without the need of hiring expensive lawyers. DMCA.com is great but I find their services a tad expensive. Also, if you are going to do-it-yourself why pay someone $10 a month? I’m not knocking DMCA.com but there are many other DMCA takedown services out there to choose from that also offer competitive rates such as:

    http://dmca.pro/
    http://www.onsist.com/
    http://www.copyrighthandler.com/
    http://www.dmcaforce.com/

  13. Hi Gene,
    Actually i am having a around 3 years old blog and i find that lot of people are stealing my content and publishing.I came to know about DMCA.COM from a friend.Then i was searching on google for DMCA and reached your post.It was very useful…Is DMCA protection fool proof..