Filing a DMCA notice and counternotice

Disclaimer: Readers are advised not to take this post as legal advice given that the law and its interpretation can change from time to time.

Has someone published your material on their website? Have you received a notice that you published someone else’s material on your website? Learn more about the Digital Millennium Copyright Act (DMCA) and the notification process. While you are at it, be sure you are not sending or receiving notices in an abusive manner.

Requirements to file the notice and filing it

General parameters regarding filing a DMCA notice:

• the notice can be filed only by the copyright owner or authorized representative of the owner
• the work does not need to be registered with the U.S. Copyright Office
• be certain that the alleged infringement does not fall within fair use exceptions

What a proper notice should contain:

1. identification of the infringing work
2. description of the infringing activity
3. link to the infringing content
4. statement of good faith that the infringement has occurred
5. statement that all information provided is accurate under penalty of perjury
6. contact details and signature

Actions that can be taken by the service provider

1. Review the notice to determine whether it is valid
2. Confirm that the sender is the copyright owner or their authorized representative
3. Determine whether the use was infringing or not
4. Remove the content (especially if it was infringing)

Actions that can be taken by the alleged infringer

1. Remove the content,
2. Contact the copyright owner directly to explain the situation to allow the owner to retract the notice,
3. Issue a counternotice, or
4. Obtain legal assistance to take the situation to the appropriate resolution

What a proper counternotice should contain:

1. identification of the infringing work that was removed
2. link / location where the the infringing content was published
3. statement of good faith, made under penalty of perjury, that the content was removed by mistake or misidentification by the copyright owner or their authorized representative for reasons of of fair use provisions or some other reason
4. statement providing consent to the jurisdiction of a federal court in the district where the counternotice filer lives (in the U.S.), or statement providing content to the jurisdiction of a federal court where the service provide is located (if the counternotice filer is not in the U.S.)
5. statement providing consent to accept service of process from the filer of the original DMCA notice
6. contact details and signature

General points for everyone involved

• alleged infringers should not send a counternotice if they unsure about whether it would be possible to defend the use in court, because “consent to accept service of process” is effectively admitting this exact willingness to defend the use
• after the counternotice is sent, the removed materials will remain unpublished for ten business days, and if no further action has been taken by the filer, the materials can be republished for the benefit of the alleged infringer
• the copyright owner can request that a court orders an injunction to prevent the republication
• the service provider can set up policies with respect to how it processes DMCA notices in which it can penalize alleged infringers by terminating their account depending on the alleged infringer’s past infringement activity

This is a personal blog. The views and opinions expressed in this article are those of the author and do not represent those of people, institutions or organizations that the author may or may not be associated with in a professional or personal capacity. All information is provided on an as-is basis.