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I got a DMCA 'take-down' Notice, what do I do?

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Offline kat

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[A simplified version of the below is available here]

Before reading further it's very important to understand the process by which material is taken-down from the Internet is not simply a means by which emails are sent back-and-forth between parties, it explicitly invokes a legal process under the Digital Millennium Copyright Act and has consequences if done incorrectly or knowingly to be false.

It is strongly advised that legal Council be sought in matters of law. Do not blithely or blindly initiate or respond to a DMCA Notice, Counter Notice, or sign any documents without doing so. The below is provided for informational purposes only and should not be construed as legal advice.

What is a DMCA 'Take-down' or 'Cease & Desist' Notice and why did I get one?
Being in receipt of a DMCA 'take-down' Cease & Desist Notice means the sender believes you are, or have, misappropriated their content in some shape or form. This might be text from an article, image from a portfolio, but can be anything over which someone might have an 'ownership' claim [fn.#1], something they are claiming to have made, taken (photo), uploaded or electronic published, and irrespective as to it being the entirety of a given item or just a section, will be enough for the person or entity sending the Cease & Desist notice (the Claimant) to recognise their content and be able to state that it is theirs and take the appropriate action to have the offending material removed from a particular location. The "DMCA Cease & Desist" (more commonly known as a 'take-down order') is basically official notice of the identification and removal of said infringing material.

What do the text and links in the DMCA Notice mean?
The contents of a Take-down/Cease & Desist notices are surprisingly straightforward to understand and can be broken down into a number of different sections as follows;
  • The Claimant
  • The Original Content
  • The Infringing Content
  • The Statement of Fact
  • Claimants Signature
1: The Claimant is the person or entity making the DMCA Cease & Desist/Take-down claim. Typically this would be the owner of the original Content listed on the Notice but can be an 'Agent' acting on their behalf [fn.#2].

2: The Original Content references the material being infringed, a photograph that has been copied, duplicated or uploaded elsewhere for example. It can be a single item, a set of items, or a reference to a group of items (without necessarily listing them individually) [fn.#3].

3: The Infringing Content references the material deemed to be a misappropriation or 'infringement' of the Original Content. It can be a single item, a list of items or a reference to a group of items (again without  necessarily needing to list all items individually) [fn.#4].

4: The Statement of Fact is the claimants attestation that the notice is factual, true and correct. It is very important because it forms the basis upon which an 'oath' is formed when the notice is signed, making it a binding document [fn.#5].

5: Claimants Signature is the signing authority that turns the document into a legally binding Notice. In other words, the recipient is bound by law to respond to it. Various forms of digital Signature can be used to 'sign' a Notice [fn.#6].

How do I know the DMCA Take-down Notice is real?
The Digital Millennium Copyright Act, for which "DMCA" is an acronym, requires the service providers/operators notify the accused as expediently as possible upon receipt of a take-down order. As there are no specific requirements to what this 'alert' aught to contain some providers may forward/attach a copy of the original Notice (YouTube do this for example), whilst others may simply send a generic message about the accusation absent any specifics (most hosting companies do this). If the former is received the Notice itself will contain the Claimants details which can then be independently checked using various means, the latter requires a certain degree of trust in the DMCA process as the message will contain no identifying information. In both instances however, Notices are usually sent to the service provider/operator rather than to the accused directly (unless the accused also happens to be the service provider/operator), so any mail received that way can be regarded as reasonably legitimate and be dealt with appropriately [fn.#7].

They took down my [content]! How do I get it put back?
The DMCA take-down Notice has to be responded to. In affect, because the Notice is an accused of theft, or at least a misappropriation of content, DMCA legislation requires service providers/operators remove offending material (cf. §512 (c) (1) (A) (iii)) until such time as the claim can be sorted out - either the material remains offline because the accusation is true (irrespective of motivations, reasons or justifications for it being used in the first place), or it is put back because the accusation is untrue (without merit) - to facilitate this a response to the DMCA Notice has to be sent with effect of notifying the service provider/operator that the claim of infringement is false, incorrect or the alleged infringing party is within their rights to use the material or content. This is done filing a "DMCA Counter Notice" [fn.#8].

A DMCA Counter Notice? What's that?
A DMCA Counter Notice is just that, a 'notice' that 'counters' (opposes) the claim being made. In other words, it is a response indicating the accusation/s in the take-down notice are incorrect, false or have no merit. In similar fashion to the Take-down Notice, a DMCA Counter Notice has a relatively easy to understand basic structure;
  • The Counter-claimant
  • The Counter-claimed Content
  • A Statement of Fact
  • Jurisdictional Acknowledgment/Agreement
1: The Counter-claimant is the person or entity originally accused, now the author of a counter-claim [fn.#9].

2: The Counter-claimed Content is the material alleged to have been infringed by the original Claimant. Items would be listed relative to the original Notice received.

3: A Statement of Fact is the Counter-claimants attestation their Counter Notice is factual and correct and similarly, is a declaration of an 'oath' to that fact.

4: Jurisdictional Acknowledgement/Agreement is a statement agreeing to be bound by the laws and procedures of the U.S. Copyright Code and a particular jurisdictional area of the United States (usually the State within this the service provider/operator is located). This facilitates further prosecution of the matter under DMCA and U.S. Law should it be necessary to do so.

If I send a Counter Notice will my [content] be put back?
In sending a DMCA Counter Notice the original Claimant is being notified by the accused their accusation is incorrect or false, and being so have ten (10) days to respond to the rebuke before the service provider/operator is required to reinstate the material claimed to be infringing (cf. §512 (g) (2) (B) & (C)) [fn.#10]. Before sending the Counter Notice however, be absolutely sure any claim of infringement is indeed incorrect (in error) and/or false; NEVER, EVER, send a Counter Notice simply as a means to have infringing material reinstated by 'forcing the claimants hand' - if the claims are true (material has been misappropriated) and a Counter Notice is filed in full knowledge of this the act becomes potentially perjurious, which would then give the Claimant grounds to take the matter further, and the service provider cause to perma-ban any accounts associated with the infringing materials [fn.#11].

If they don't respond to my Counter Notice can my [content] still be taken down?
If the Claimant still has issue with the material being used the next step would be for them to initiate court proceedings by serving a sopeana to the service provider/operator to fully identify the accused infringing party. Once this information has been acquired that person can be served directly. Barring the aforementioned nothing in the DMCA legislation prevents the repeat filing of take-down Notices on the same items or material, certainly once the allotted time has passed for resolution per individual DMCA incident [fn.#12].

So there's nothing I can do to stop 'false' accusations of content theft/misuse?
So long as material references in a Notice/Counter Notice are correct, i.e. infringing content exists and can be found, service provides/operators are obliged by the requirements of DMCA to remove the material. This does unfortunately mean that even if the claim were rebuffed and material restored, multiple DMCA Notices/Counter Notices can still, in theory, be sent/received over time on the same item/s. However, should a Claimant decide on this course of action it should be noted that service providers/operators may determine a Terms of Service violation assessment against the Claimant and suspend associated account/s for causing a disruption to service through filing 'frivolous DMCA notices' [fn.#13].

So what do I actually need to do?
If sending a DMCA Counter Notice the material referenced in the original Take-down order needs to be inspected carefully to determine if they are indeed copies or misappropriations, intentional or not. If they are then it's unlikely filing a Counter Notice will be productive (certainly not recommended) [fn.#14]. It's also unlikely offending material will be accessible to facilitate changes being made to remove the infringing content by the accused infringing party. This will however, largely depending on the type of service being subscribed to, and the level of access the service provider/operator grants whilst individual DMCA actions are in progress [fn.#15].

If sending a DMCA Take-down Notice, before doing anything make absolutely sure the material in question actually infringes Copyright; there are a number of allowances for "derivative works" (§101 para #15 "derivative works" ) and "Fair Use" (§107 - "Limitations on exclusive rights: Fair use"), amongst other exemptions/excepts for example, that need to be born in mind [fn.#16]. In other words, a claim needs to be factually based rather than interpretative subjective - someone looking at the original and infringing materials side-to-side needs to see more than just a passing similarity - similar is not same [fn.#17]. If the work is found to be infringing, rather than jumping-the-gun and filing a take-down Notice, check to see if the service provider has any specific policies with respect to DMCA to make sure that whatever is filed complies with their requirements, else the Notice will be rejected [fn.#18]. Gather material evidence, that is, specific items, urls and other information which helps identify the original and infringing content, as well as their respective history (if available for possible use later). If possible seek advice from Legal Council versed in DMCA litigation; even if this is just to advise on the merits of the claim, it is worth getting if the means to do so are available. Finally, using all the information gathered, write up, and then file, the DMCA Take-down Notice with the service provider/operator as the the requirements of DMCA itself and any policy guidelines the provider may have in place - if the claim is valid the material will be removed, if it's contested a Counter Notice (as outlined above) will be received, which means reassessing the claim; was it really an infringement?; does this need to be taken further? [fn.#19].

Do I need to send my original material as proof?
Whilst it might seem a good idea to 'prove' the material being claimed against, either as a take-down Notice or Counter Notice, were legitimately created by its respective author, it is NOT NECESSARY (nor a requirement) to forward any working files or other supplementary materials with a Notice or Counter Notice, this is not the purpose of the DMCA process, which is simply a claim/counter claim notification procedure; evidential requirements come later at the point of litigation, should the claim go that far. If additional material is sent, it will be forwarded on to the Claimant (or Accused) as part of the DMCA process, meaning the receiving party will have a copy of the original working file/s used.

References & Resources

[1] "Ownership" as it applies to online material will generally mean an item or items that someone created or owns the copy (distribution/duplication) 'Right' to, i.e. the person which gave 'birth' to, or 'manifest' a particular idea, thought, sound or visual concoction in a tangible form that can be viewed or distributed by a third party.

[2] The author of a DMCA take-down notice is not necessarily the person or entity who created the material being infringed, but may instead be an 'Agent' acting on behalf of said person, or more onerously, a person or entity making a 'false' claim. Details typically should include enough information to facilitate the proper prosecution of paperwork either electronically or by mail (cf. §512 (c) (3) (A) (iv)).

[3] As fn.#2 above, the original material need not have been created by the the author of the DMCA notice, they can be a person or entity with the authority to act on behalf of the 'Claimant' (person/entity submitting on whose behalf the notice is being served).

[4] As with fn.#2 & fn.#3, the list of material does not necessarily 'belong' to the person or entity making the actual claim if they are the originators 'Agent'.

[5] The statement is a declaration which is potentially perjurious when knowingly signed containing false or incorrect information. Perjury is a Felony crime under U.S. Code and carries severe penalties.

[6] Because the DMCA process can be done wholly by electronic means, a DMCA Notice or Counter Notice can be 'signed' in a number of ways; using some form of digital credential that has been security and/or identity certified; or by including a digital scan or digital photo of a real, written, signature. Note that additional forms of verification may be requested during the process.

[7] A message being "legitimate" speaks to the mail not being unsolicited spam and instead received through proper channels (directly from the service provider/operator). It may be possible to email the service provider or operator requesting a copy of the original DMCA Notice but this is unlikely to prove fruitful for various reasons - 'security' and/or 'privacy' are typically cited as a reason for none compliance with this type of request, but largely it simply falls to there being no specific requirement with respect to this other than receipt of a message indicating what's happened (cf. §512 (g) (2) (A)). Note also that whilst it should be assumed that any contact information is 'real' (it is a requirement of DMCA that ALL information be factually correct, else it invokes Perjury), it is entirely possible for this information to be false, fake or incorrect. Claimants are less likely to 'fake' take-down Notices when sent to service providers/operators because bad claims risk Claimants loosing their own accounts (if they have them).

[8] There are mitigating or circumstantially exemption-able caveats to this relating to the 'context' of use - U.S. Copyright law, of which DMCA is a component, allows for "Fair Use" covering a number of very specific exemptions, typically 'research', 'educational', 'review' and other such contexts. However, although the Copyright Act lays out basic constituent criteria, interpretation will likely be subjective, necessitating the employ of Legal Council versed in Copyright Law and/or DMCA.

[9] As with a Take-down Notice, the filing Claimant can be the author/owner of the material or an Agent acting on their behalf. Again, although the Counter-Claimants details are required to be 'factual' (cf. §512 (f) and §512 (g) (3) (D)), just as a Claimants are (cf. §512 (c) (3) (A) (iv)), it doesn't necessarily mean they will be if the DMCA process is being abused either sending or receiving Notices.

[10] Although service providers/operators are required to reinstate material no sooner than ten, and no later than fourteen, days after a DMCA Counter Notice has been filed (cf. §512 (g) (2) (C)), the speed with which this actually happens will vary depending on the service provider/operator - most do comply within the allotted time-frame, whereas others don't or won't; typically messages to the provider concerning delays go unanswered requiring the potential of legal action against the provider.

[11] NEVER, file a false or knowingly incorrect Notice or Counter Notice. Not only does this carry greater potential for further litigation and serious consequences with respect to Perjury, it also undermines the efficacy of the DMCA process for everyone.

[12] Notwithstanding enforcement issues, it should be noted that being outside the United States does not mean Notices or paperwork served to a service provider to reveal the identity of the accused, or further pursuit of prosecution, is without merit; in signing a DMCA Notice or Counter Notice, agreement was made for the signatory to be bound by the jurisdiction of the United States rather than necessarily any local laws governing Copyright.

[13] A conditional aspect of service providers/operators compliance to DMCA Notices and Counter Notices is their being granted "Safe Harbor" status as the man-in-the-middle; so long as they act expeditiously they cannot be held liable with respect to infringements. Additionally, whilst there are specific protections against filing 'false' DMCA Notice/Counter Notices (cf. §512 (f) "Misrepresentations), there are none concerning "frivolous DMCA claims", that is the repeat filing of notices, that whilst 'truthful', have been successfully countered, such that they cause nuisance or are determined to cause interference. Irrespective of this service however, providers/operators are generally within their Terms of Service rights to suspend accounts associated with such activities as they deem disruptive to service provision.

[14] The original author of the material doesn't care where the material was acquired, nor how it came in to the possession on the accused, which is why the take-down notice was filed in the first place. All they see is a source of their material not appropriately permissioned for use.

[15] Some providers may continue to allow access to infringing material at an account-level to facilitate content administration (editing/changes). It is unlikely however, which means relying on whatever local HDD archive is available to double check the infringing materials are indeed same/similar/different; being able to check is heavily dependent on receipt of the origin Notice or the service provider/operating sending enough details through for verification - in order to check the original material needs to be inspected. Unfortunately DMCA doesn't work this way, so this latter point may mean contacting the provider with a request for more information to facilitate being able to verify the claims being made.

[16] This is notwithstanding any limitations or necessities associated with the service being used. For example, in uploading content to "X" service, do their terms of service specifically allow such material to be used, changed or altered to make new content? If so, then claims of infringement need to accommodate accordingly - what might ordinarily be considered a claim might be invalid in such an environment.

[17] The use and definition of "derivative works" and "Fair Use" is contentious even thought §102 - "Subject matter of copyright: In general" and §103 - "Subject matter of copyright: Compilations and derivative works" lay out the prerequisites of what constitutes protectable Copyright and Derivative works. This is why it's important to seek Legal Council or at the very least a third parties second opinion on the work in question before progressing with any DMCA actions.

[18] It is only necessary for providers to "substantially" comply with the requirements of DMCA Notices so they may ask for additional information, or more likely, for said to be structured in a particular way before processing an order.

[19] If Legal Council were used, part of this may mean the Noticed being filed by Council acting on the Claimants behalf as their Agent. More typically though, DMCA Notices are filed using the Claimants details as the necessary administrative contact information.

Offline ratty redemption

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that was a lot to take in but very interesting, thanks for taking the time to research and post this for us kat.