It seems that two or three times a week I am sending a DMCA take down notice to a website hosting company to complain about the blatant and willful copyright infringement certain customers of theirs are engaging in. They will literally cut and paste entire articles without as much as changing a single word. Copyright infringement is rampant on the Internet and if you are creating original content you must do something to inform yourself about what others are doing and take appropriate and immediate steps to get copyright infringers to stop.
By now you would expect that virtually everyone knows that you cannot cut and paste the work of others onto your website without their permission, but I am not sure that is the case. Whenever I talk to people about copyright law and the copyright infringement we deal with they ask “so they just copied your work without any link back to you?” In some cases I can answer that question “yes,” but in other cases the answer is “no.” It is amazing to me that people can actually think they can copy the work of others if only they provide a citations or link back.
Copyright infringement has nothing to do with citation or linking back. A copyright owners rights have been infringed if another reproduces the work without their permission with or without citation. In the minds of some copyright infringement is synonymous with plagiarism. Plagiarism, however, is the passing off of the work of another as your own without citation. Legally, however, copyright infringement is merely copying, with or without appreciation of the wrong. So those who cite and link back are not absolved from copyright infringement. They are misappropriating an original work and free-riding. There is nothing creative, laudatory or commendable about free-riding.
Luckily in the United States we have the Digital Millennium Copyright Act to assist us. This Act provides immunity from liability for Internet Service Providers as long as they act swiftly to investigate and ultimately remove or disable infringing material once they are notified. So the website hosting provider leases space on their servers to an individual or business and the lessee posts the infringing material. If you notify the web host they, in my experience, always take down or disable the infringement because if they don’t then they will be on the hook. With attorneys fees and statutory damages that can rise to $150,000 (see 17 U.S.C. § 504(c))it isn’t hard to see why the DMCA is so effective a tool for copyright owners.
Given that we are having increasing difficulties with copyright infringers I’m sure there are many others out there having similar experiences. With that in mind I thought it might be useful to take a look at the DMCA provisions and what is required in order to create an effective DMCA take down notice.
The Digital Millennium Copyright Act
The United States Congress enacted The Digital Millennium Copyright Act, more commonly referred to as the DMCA, which was signed into law on October 28, 1998. The DMCA had as its primary purpose the goal of updating United States copyright laws with an eye toward making them more relevant and flexible given the ever changing digital information climate.
17 U.S.C. § 512(c) limits the liability of service providers for infringing material on websites hosted on their systems. Service Providers are eligible for the limitation on liability when they do not have actual knowledge of ongoing copyright infringement, are not aware of facts or circumstances surrounding ongoing copyright infringement, or upon gaining such knowledge the Service Provider responds expeditiously to take the material down or block access to it.
§ 512(c) establishes the procedures for proper notification to a Service Provider should you feel that your copyrighted material has been misappropriated and there is ongoing copyright infringement by someone using our services. Under these so-called notice and takedown procedures a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to our designated agent. Failure to comply with the statutory requirements means that the notification is defective. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability.
How to Send a DMCA Take Down Notice
To be effective as a DMCA take down notification your notification of claimed copyright infringement must be a written communication to the service provider’s designated agent and must include the following:
1. Identification of the copyrighted work(s) claimed to have been infringed.
2. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled. You must provide information reasonably sufficient to permit the service provider to locate the material, such as the URL where the infringing material can be located.
3. Information reasonably sufficient to permit the service provider to contact you, the complaining party. At a minimum you should provide your address, telephone number and an electronic mail address that can be used to contact you.
4. You must include one of the following statements somewhere in your letter:
a. “Under penalty of perjury, I swear that I am the owner of the copyrighted material described in this letter and that the identified copyrighted material is allegedly being infringed and that I have the right to act on my own behalf to seek redress for this alleged infringement. I have a good faith belief that use of my copyrighted material in the manner complained of is not authorized by myself, any agent of mine or by the copyright laws. I further swear under penalty of perjury that the information contained in this letter is true and accurate.” OR
b. “Under penalty of perjury, I swear that I am authorized to act on behalf of the owner of the copyrighted material described in this letter and that the identified copyrighted material that is allegedly being infringed. I have a good faith belief that use of the copyrighted material in the manner complained of is not authorized by the copyright owner, any agent of the copyright owner, or the copyright laws. I further swear under penalty of perjury that the information contained in this letter is true and accurate.”
5. You must sign the letter either with a physical, wet signature (i.e., using a pen) or you must use an electronic signature.
6. Send the notification to the service provider. You can find the service provider in most cases by doing a Whois Search. Type in the domain name and then look for “name server.” For example, if you type in “LEGALTEAMUSA.COM” to the Whois Search you will find that the “name server” is EXTNS1.NUVOX.NET. That means LEGALTEAMUSA.COM is hosted on NUVOX.NET servers. So you would go to NUVOX.NET and find the contact addresses, fax or e-mail address and send your notification.
If you follow these procedures I’m as confident as I can be about anything that you will find your copyrights vindicated.