Monday, August 15, 2016

Protecting Your Work Online Using the DMCA

Protecting Your Work Online Using the DMCA

            I have recently been asked a number of times about what to do if someone is distributing your work online without your authorization. It is a great question, and there are a few options.
Obviously, you can reach out to the person distributing your art online and ask them to take it down. Frequently, this will be enough, and it is an approach that you can take in just about every instance where someone has posted your work online. The potential downside to this option is in how the person reacts. Sometimes, he will ignore you, and you will have to resort to the options below. Sometimes, he will engage you in a conversation about what he has done and what you are doing, and this can be an opportunity to educate him about your work and your rights. Sometimes, however, he will be defensive and argue with you, which can be stressful and an unproductive drain on your time. Even with the downsides, this is still a good option in many cases.
Another option, and the harshest, is to sue him. If someone is using or posting your work online without your permission, it is likely to be a copyright infringement. However, this can take a long time to wind through the courts, cost a lot of money up front, and, depending on the circumstances, it can make you look like a bully.
My favorite option to remove infringing content from the internet is to send a Digital Millennium Copyright Act takedown notice. Depending on where the work is posted, sending a DMCA takedown notice is the easiest way to enforce your rights. The DMCA was enacted in the late 1990s, and it includes a provision that limits online service providers’ liabilities for copyright infringement if they register with the Copyright Office a designated copyright agent to receive notice of infringement, post the information on their website for the public to access, and if they promptly respond to proper takedown requests sent to this copyright agent.[1] Online service providers are not required to take down material that is alleged to be infringing. However, if they receive a takedown notice and do not act, then they have been placed on notice of infringing materials, and they may face liability as a secondary infringer.[2] Due to the way this law is structured, online service providers almost always take down allegedly infringing material as soon as they are notified. Personally, I find this method to be one of the easiest ways to quickly remove infringing material from the internet, particularly if one website has a lot of infringing materials on it.
For example, if you are an online marketplace like Etsy where people are uploading and selling homemade items, you would not want to be held liable for copyright infringement for any infringing items being sold on your website by your users. So, you would register a copyright agent with the Copyright Office, usually someone in your legal department, and you would list the copyright agent’s email address in an easily accessible area. If your copyright agent receives a proper takedown notice from someone who believes their copyrighted work is being infringed, and your website acts quickly to remove or disable the allegedly infringing content, then your website would not be found liable for secondary copyright infringement.  
In order to send a DMCA takedown notice, you must send the following information in writing to the designated agent of the service provider:

(i)                 “A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii)               Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii)             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.
(iv)             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.
(v)               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.
(vi)             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.”[3]

 Once you have sent a takedown notice containing all of the information above to the designated agent, a site will typically remove or disable the allegedly infringing material in a few days. The alleged infringer does have the ability to challenge your takedown and have the material reposted, but if it is clearly an infringement, they won’t.
The DMCA takedown notice is an effective and quick way to protect against the unauthorized distribution of your work online. Once you know how to use it, it will quickly become your favorite method of removing infringing material from websites.

[1] Online Service Providers, U.S. Copyright Office, (last visited July 5, 2016).
[2] Id.
[3] 17 U.S.C. §512(c)(3)(A)

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