DMCA Takedown Notice Background

DMCA takedown notice background

Generally, a service provider would have liability for copyright infringement. The law provides for limiting the liability of online service providers (OSP) for infringing material on websites hosted on their systems, including website users posts on the website.

Limitation eligibility

To be eligible for the limitation, an OSP must not have the requisite level of knowledge of the infringing activity. If the OSP has the right and ability to control the infringing activity, it must not receive financial benefit directly attributable to the infringing activity. Upon receiving proper notification of claimed infringement, the provider must expeditiously takedown or block access to the material.

In short, the OSP must not have knowledge of the infringement. If they gain such knowledge, they must expeditiously take down the material or block access to it.

DMCA Takedown Process

The law establishes procedures for proper notification to the OSP, and rules for the notification.

1. A copyright owner must submit a notification under penalty of perjury to the service provider’s designated agent. DMCA Takedown Notice template can be found in the shop.
2. Upon receiving proper notification, the service provider promptly remove or blocks access to the material identified in the notification
3. The provider is exempt from monetary liability.
4. The person posting the alleged copyrighted material has the opportunity to respond to the notice and takedown by filing a counter notification to the provider.
5. Unless the copyright owner files an action seeking a court order against the person posting the alleged copyrighted material, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

DMCA Notification requirements

To be an effective notification, the notification of claimed infringement must be a written communication provided to the designated agent of the service provider that includes substantially the following:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work;
3. 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.
4. 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.
5. 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.
6. 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.

Unrelated (not sponsored):

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