The DMCA Notice and Takedown Process
In passing the notice and takedown provisions in the Digital Millennium Copyright Act (DMCA), Congress intended to encourage copyright owners and service providers to work together to combat existing and future forms of online copyright infringement.
What Is a DMCA Takedown Notice?
The DMCA notice and takedown process is a tool for copyright holders to get user-uploaded material that infringes their copyrights taken down off of websites and other internet sites.
The DMCA Takedown Process
The process entails the copyright owner (or the owner’s agent) sending a DMCA takedown notice to a service provider requesting the provider to remove material that is infringing their copyright(s). A service provider can be an internet service provider (e.g., Comcast), website operator (e.g, eBay), search engine (e.g., Google), a web host (e.g., GoDaddy) or other type of online site-operator.
There are several elements that should be included in a takedown notice that are specified by the copyright law. If most of these elements are not included, the service provider may refuse to take down the material. Even if a takedown notice meets all the legal requirements, the service provider still may refuse to takedown the material. However, if they fail to do so, then they open themselves up for potential secondary liability for assisting with copyright infringement. (see Safe Harbors for more)
The DMCA takedown process can be used regardless of whether the copyright owner has registered their work with the U.S. Copyright Office. It should not be used for anything other than copyright infringement claims. Many service providers offer easy-to-use online tools to submit claims directly to the provider through an online DMCA takedown form.
After a takedown notice is sent to a service provider, the provider usually notifies the user, subscriber or other person who is responsible for engaging in the infringing activity. If that person – the alleged infringer – in good faith does not think the activity is infringing, he or she can send a counter notice to the service provider explaining why they disagree with the copyright owner. After receiving a counter notice, the service provider is obligated to forward that counter notice to the person who sent the original takedown notice. Once the service provider has received a valid DMCA counter notice they must wait 10-14 days. If the copyright owner sues the alleged infringer in that time frame the material will remain down, but if no suit is filed then the service provider must re-activate or allow access to the alleged infringing activity.
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