Even before it was passed, the Digital Millennium Copyright Act (DMCA) of 1998 was controversial. Besieged almost immediately by free speech and privacy advocates, worried that the rights granted in the DMCA would be abused, the DMCA became another four-letter word, one best never spoken in most circles.
But at the same time the DMCA quickly became one of the most important copyright laws on the Web. Even as certain provisions were drawing fire for being too extreme, the safe harbor provisions were better defining the role Web hosts have in stopping copyright infringement, helping Webmasters get infringing material removed and making new services possible.
Though not without controversy in their own right, the safe harbor provisions became critical for Webmasters to know and use in order to protect their content.
However, knowing what the safe harbor provisions are and how to use them is essential to both take advantage of the new powers the DMCA grants rights holders, but also to avoid the pitfalls of using the DMCA.
Fortunately, writing a DMCA notice is a simple process and can be done by just about anyone, no attorney is required.
What Safe Harbor Means
Prior to the passing of the DMCA in 1998, Web hosts operated in something of a legal gray area when it came to copyright infringement. With thousands, even millions of pages worth of content available on their servers, it seem likely that at least some of them were infringing. However, the liability the host had for the infringement was unclear.
The DMCA sought to clarify that issue. It laid down a set of guidelines and provided hosts with “safe harbor” if those guidelines were met. This meant, simply put, that hosts could not be held liable for infringement that took place on their servers so long as they met the requirements of safe harbor.
One of the key requirements of safe harbor was to respond “expeditiously” to claims of copyright infringement by removing infringing material and banning repeat infringers. It also set forth a list of requirements to be included in such a notice to prevent it from being abused.
The result was the DMCA notice, a now almost-standard letter that can be sent to U.S.-based hosts to request the removal of infringing material. Though it is unclear how many are being sent every day, the number is likely in the thousands.
What the Law Says
The easiest way to create a valid DMCA notice is to find a good template and modify it to suit your needs.
However, when looking at a new template or attempting to create your own, it is important to remember the six elements that the DMCA requires of any such notice.
They are in order:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- 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.
- 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.
- 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.
- 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.
- 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.
Though these requirements can seem very intimidating, most of them are, in truth, very simple. If one takes a look at these requirements on at a time, they can quickly see that creating a DMCA notice is no great challenge at all.
Pulling it all Together
The first element states that only the copyright holder or a designated agent thereof can file a notice. You can not file a notice for copyrighted material you do not own or represent. It also states the the notice must have either a physical or electronic signature of that person. Though some hosts, such as Google, still require handwritten signatures, the ESIGN Act of 2000 states that an electronic signature is as valid as a physical one so long as it shows an intent to sign. Thus, in most cases, simply ending the notice with the words “Signed: Your Name” is valid.
The second and third items direct the filer to designate both the works that have been infringed and the works that are infringing. The easiest way to do that is to simply provide links and titles to both the original works on your server and the infringing works on the plagiarist’s server.
The fourth requirement simply asks you to provide full contact information for yourself so that the host can reach you. Since different hosts want different things, it’s best to include your name, address, phone number and email on all DMCA notices you send out.
The final two elements are both intended to be taken quite literally. The fifth element is a statement that the use is not authorized and the sixth element is one that states, under the penalty of perjury, that all of the above information is accurate.
When it is all said and done a proper DMCA notice should include the following:
- Links to the original works with titles
- Links to the infringing works, titles if necessary
- Your full contact information
- A statement that reads as follows: “I have a good faith belief that the use of the material that appears on the service is not authorized by the copyright owner, its agent, or by operation of law.”
- Another statement that reads as follows: “The information in this notice is accurate, and I am either the copyright owner or I am authorize to act on behalf of the copyright owner.”
- A physical or electronic signature from you.
If your notice has all of those elements, then it should be valid. If it misses any of those elements, it will very likely be rejected by the host, forcing you to refile your notice and causing a delay in getting resolution.
Sending it On
Once you have a good template or have written a stock notice, creating a DMCA notice is a simple matter. However, finding where to send it on can be a very daunting challenge.
First, you have to determine who the host is. If the plagiarist or infringer doesn’t have their own domain, that is simply a matter of looking at the URL and visiting the root domain. If the plagiarist owns the domain, then you need to use a site like Domain Tools to find out who the host is.
For example, if you visit Domain Tools, type in the domain BlogHerald.com and click search, you will be taken to this page. There, under the heading “Server Information” you can see that the IP location is the United States and is hosted by “Everyones Internet”. Click the “W” next to the IP address and you will be taken to this page where you can look at the server information. There you will see the domain ev1servers.net repeated heavily. Type that in to your browswer and you will be taken to ThePlanet.com, who acquired Ev1Servers.net back in 2006. That makes ThePlanet the host.
Once you are on the host’s Web site, you can then visit the U.S. Copyright Office list of designated agents to find out who the agent for the host is. However, that list is both incomplete and is, in many cases, out of date.
Once you have that, it is simply a matter of emailing or faxing the DMCA notice in. It is that simple.
How Hosts Respond
Most hosts take DMCA notices very seriously. The majority of hosts respond to a DMCA notice within one business day, almost all respond within three. They will, generally, send you an email back letting you know that the material has been removed though some will not contact you directly once it is gone.
Generally speaking, most hosts would respond favorably to such notices, even without the DMCA. Few hosts want plagiarists and copyright infringers on their service as it tends to attract a kind of user they don’t want to welcome.
However, this doesn’t mean that hosts are happy about having to remove infringing material and, potentially, angering their users. Do not be surprised if the tone the host takes with you is terse or if they use carefully-worded form letters for their correspondence.
Remember that hosts were some of the main people pushing for the safe harbor provisions and that they are there to protect them as much as you.
Though it is unfortunate that it has come to this point, it is not your fault and the host realizes that, even if it doesn’t seem that way.
Through all of this, it is important to be certain that you are filing the notice with pure intentions. Using a DMCA notice to squash free speech or criticism is not tolerated and can create a great deal of trouble.
Make sure that you are using the DMCA with the sole intent of stopping clear copyright infringement. Personally, I reserve the use of the DMCA for plagiarists and scrapers. I encourage others to do the same.
It is a powerful tool and with that kind of power comes the responsibility to use it only when appropriate. Using it illegally can not only bring severe legal consequences, but can also weaken the law for those of us that have legitimate need for it.
Simply put, if too many people abuse the law, hosts will treat DMCA notices with less severity and respond less quickly. Much like the boy who cried wolf, if too many DMCA false alarms are sounded, hosts will treat notices with greater suspicion and, down the road, the law may be changed to reflect that.
So, when filing a DMCA notice, always be smart about it and make sure your intentions are pure. It is the only way to stay out of trouble and make sure the law remains effective for those who need it.
Note: I am not a lawyer and nothing in this article is to be taken as legal advice. Though it is based upon extensive research into copyright law and the DMCA, it is not to be taken as legal truth. If you have a question about these issues, it would be best to take it up with an attorney.
Jonathan Bailey writes at Plagiarism Today, a site about plagiarism, content theft and copyright issues on the Web.