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Are DMCA Protection websites scams?

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Offline kat

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It's an unfortunate inevitability that posting material to the Internet will at some point mean having to deal with the niceties of "DMCA", either as a Claimant sending a "DMCA 'take-down' Notice", or the Accused having to respond in kind with a "DMCA Counter Notice". Whilst most issues can be dealt with by those involved, in researching the subject it won't have passed notice there are a number of websites and businesses dedicated to providing various free or premium (paid for) DMCA 'take-down' and/or DMCA Protection services.

What are they? And are they any good?.

It is strongly recommended 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 DMCA?
The essence of "DMCA", or "Digital Millennium Copyright Act", is an administrative process of notifications, i.e. the sending back and forth of documents authors, creators and copyright owners can use to have their content removed or taken down from the Internet or other electronic publishing system (iTunes, Kindle, etc.) when it's been 'stolen', infringed or otherwise misappropriated without permission. The Claimant (person finding their work used without permission) files a "DMCA 'take down' Notice" with a service provider (YouTube, Apple or Amazon for example) who then removes or disables access to referenced materials. If the claim is valid nothing else typically needs to be done. If the claim is invalid, false or incorrect, materials claimed against may be re-enabled on their own merits and/or if the Accused responds with a valid "DMCA Counter Notice".

How much does DMCA cost?
There are no inherent licence or processing fees ascribed to the issuance of a DMCA Notice or Counter Notice, their filing with a Service Provider or other entity. Costs may be incurred however, sending emails, posting documents, paying for the use of an appropriately qualified third-party 'Agent' (a DMCA lawyer for example) or independent service to administer the procedure on behalf of involved parties.

Can DMCA protect content?
DMCA does NOT "protect" content in a pro-active preventative sense. Instead DMCA is re-active, that is, it provides 'protection' after-the-fact; DMCA cannot be used to stop theft, it can only be used to indirectly prevent or disincentivise further or continued infringements once discovered[1]. This essentially means that ANY website or business offering "DMCA Protection" or similarly tagged benefits, is doing so by misrepresenting the relationship between their respective content protection services and DMCA. In other words, DMCA itself is not 'protecting' content, (typically proprietary) tag and track technologies are.

Do I need to use a DMCA Lawyer?
Filing a DMCA Notice or Counter Notice invokes a Legal process (one signed under Perjury) so anyone making a claim, or being accused of infringement, is strongly advised to seek council from an appropriately qualified DMCA or Copyright Lawyer, Solicitor or other Legal professional before submitting or responding to a claim, at the very least to assess its merits.

Should I use a DMCA Takedown Service?
Whilst most DMCA issues can be resolved by involved parties, occasionally the use of a third-party, a "DMCA Agent", may need to be considered. Should this course of action be taken the agent would normally act in an administrative or managerial capacity filing the necessary paperwork on behalf of claimants or accused, and only once the appropriate contracts have been signed authorising them to do so. What they cannot do, unless carrying the appropriate legal qualifications or personnel, they are or employ, DMCA or Copyright Lawyers for example, speak to, or offer, legal advice concerning the veracity of a DMCA claim.

So what are these DMCA takedown services charging for?
Typically DMCA protection services and DMCA Agents charge fees for the administration or management of Claims and Counter Claims, or for the use of proprietary technologies that 'tag and track' content. What they cannot do is charge for, or imply, that DMCA itself incurs any processing or licencing fees. The issuance of DMCA Notices has no such requirements.

So how do I protect my work with DMCA?
As discussed above, the intent behind DMCA is remedial, its invoked after-the-fact. This means marking content with "DMCA Protected" badges, stickers, insignia or other identifiers provides NO inherent preventative protection. In other words, to believe marking content pro-actively prevents theft is to fundamentally misunderstand the intent and purpose of DMCA - it cannot and will not prevent theft. However, this is not to say that using "DMCA Protected" badges and other identifiers is without merit, rather that their presence might be considered a notification of intent by content authors/owners they they will resort to DMCA and available processes to address infringements.

Can I use DMCA on foreign non-US websites?
For DMCA to be applicable in non-US countries, services upon which infringing material might exists would have to subscribe, at least in principle, to DMCA as expressed in United States Copyright Law. There are no obligations for their doing this however, especially where doing so may supersede laws and legislation governing localised Copyright. Legal Council is particularly advised in instances of International infringements.

Can I use DMCA to remove my photos (of me) from Facebook?
DMCA should only be used to address issues of Copyright infringement, meaning, a claim aught to be made using a DMCA takedown Notice only if the alleged image or photograph is in some way 'owned' by the claimant, i.e. the material was produced using the claimants own camera device or one they had given permission to use. Should this not be the case, any DMCA Notice sent in pursuit of such an infringement claim would likely fail through receipt of a valid Counter Notice, resulting in the alleged material being re-enabled. Furthermore, filing DMCA Notices over issues more correctly pertaining to possible privacy rights (model release)[2] may precipitate prosecution of claimant though causing content to be erroneously removed based on a knowingly false or incorrect claim.

What next
Click "I got a DMCA takedown Notice, what do I do?" to find out what you need to know before filing a DMCA Notice or Counter Notice.

Help others
Was this information helpful? Select the code below, copy/paste it into a webpage and help educate others about using DMCA to properly safeguard their content!.

Click to find out what "DMCA Protected" means

"Safeguarding content through DMCA"

[1] DMCA can't 'prevent' abuse in the pro-active or direct sense, rather it tends to function indirectly or passively (like 'law' in general) through the threat or possibility of action be taken against the Individual or Entity, the 'chilling effect', being enough of an incentive to dissuade further or future infringements, particularly on item/s against which a claim has been made.

[2] The removal of Personal Photos and Media, for example 'revenge ****' or 'naked ex' photos or movies, is typically addressed as a Privacy Rights issue rather than DMCA, unless 'ownership' of media can be clearly established (because a Counter-claim can otherwise easily be made by the accused individual if they actually took the photo with their own equipment). Model Release Forms and other Commercial Exploitation Contracts that involve media that might otherwise be considered 'personal' (of a person) are subject to DMCA however, depending on defined and agreed upon terms.