Search:
 
 

DMCA 101

In recent weeks, I’ve seen a number of posts by non-attorneys on blogs, writers’ loops, and forums that have left me scratching my head. So I’d like to take today to go over the basics of the Digital Millenium Copyright Act and how to do a takedown notice.

The Digital Millennium Copyright Act (DMCA) is one of the best-known and most-controversial pieces of legislation in recent years. It is a United States copyright law which implements two 1996 World Intellectual Property Office (WIPO) treaties. It criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (commonly known as digital rights management, or DRM) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also heightens the penalties for copyright infringement on the Internet.

The DMCA amended Title 17 of the U.S. Code to extend the reach of copyright, while also limiting the liability of online providers from copyright infringement by their users.

The DMCA has passed by a unanimous vote in the Senate, and signed into law by President Bill Clinton on October 28, 1998. This law only applies in the US, however, a number of other countries have similar provisions in their copyright law. For example, on May 22, 2001, the European Union passed the EU Copyright Directive (EUCD), which is similar to the DMCA.

 Perhaps the most important provision for authors is the so-called Safe-Harbor Provision, which exempts web hosts and other online service providers from liability for contributory copyright infringement. Before the DMCA, such online providers could be used for contributing to the infringement simply because they provided the hosting the unlawful content. The “Safe Harbor” provision exempts online providers as long as they meet certain qualifications and follow certain steps to remove the allegedly infringing material.

TAKEDOWN NOTICE PROCESS

Why is this important for authors? Because it provided the groundwork for the DMCA Takedown Notice. Under the DMCA, copyright holders and their agents can demand removal of allegedly infringing content. To do that, they must provide a complete takedown notice.

If you discover that your copyrighted work is being infrigned, you must first determine that the work is infringed. It may be necessary to consult an attorney to verify. Once you’ve determined this, then take screenshots or otherwise preserve the infringing site, which will be useful in the case of a dispute later.

Next, locate the host of the site where the work is located, using a service such as WhoIsHostingThis or Domain Tools. Then send the notice to the registered DMCA agent or to the host’s abuse team. Assuming you’ve sent a complete notice, your work should be removed in a couple of business days.

By law, this notice must contain the following elements:

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 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.

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.

This notice — which must be filed by the copyright holder or her representative — is sent to the service provider’s DMCA agent. All service providers must appoint such an agent, and register the agent with the U.S. Copyright Office.

There is no standard format for the takedown notice, and any letter (whether physical or digital) that contains all of these elements will suffice. However, many filers use a form letter to speed the process along.

So what happens next?

Once the registered agent receives the takedown notice and has verified that it is a complete notice, then they either remove or disable access to the infringing work. Although this can be done many ways, it’s usually accomplished by deleting the allegedly infringing material and/or disabling access to the entire website.

You will note that the registered agent of the online provider only verifies the completeness of the claim — not the validity — before disabling access to the infringing work.

At this point, the online provider (web host) contacts the client involved to inform him why material has been removed from the website or the website itself disabled to give him the opportunity to respond.

The client whose website has been disabled has two options. First, they can do nothing. If the notice was valid and the takedown just, they can simply do nothing and accept that the work has been disabled. Of if they work was not an infringement and the notice was in error or malicious, the client can file a counter-notice.

COUNTER-NOTICE PROCESS

The counter-notice must contain the following elements:

1. A physical or electronic signature of the subscriber.

2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who filed the takedown notice.

No standard format is required, but many parties choose to use a template for the counter-notice.

The online provider must then notify the person who filed the original takedown notice of the existence of the counter-notice, then within 10-14 business days restore the work that was taken down. During that 10-14 business day period, the copyright holder has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline.

In extreme cases where the notice is knowingly false, the online subscriber/counter-notice filer can file suit against the original notice filer (copyright holder) for damages, including attorney’s fees and court costs.

It is important to file a counter-notice if the takedown was sent in error or maliciously, even if you don’t care whether the material is restored. Web hosting companies are required to ban and delete accounts of repeat infringers. If you receive too many DMCA notices (as in the case of the LendInk matter), you may find your entire account disabled, even if the claims in the takedown notices were invalid.

As I stated earlier, the DMCA is a US law, and only applies to online providers located within the US. The biggest frustration for many authors is that often pirates operate outside US jurisdiction, and thus claim that the DMCA does not apply to them.

While this is true, other countries have adopted similar takedown system. For example, the European Union offers a similar procedure through the European Directive for Electronic Commerce. Australia also has a notice-and-takedown system. Canada, on the other hand, does not have a takedown system, but also provides complete safe harbor for online providers. In other words, the only way to compel an online provide to remove your unauthorized copyrighted work is with a court order.

Many authors find utilizing an anti-piracy service, such as Muso, is an effective way to get unauthorized copies of their work off of the internet. While Muso is unable to eliminate all instances of piracy (particular those located in countries without an effective takedown system) and new sites crop up every day, this service can be a real help so that you don’t have to locate every instance of piracy and issue all the notices yourself.

Oh, and by the way, since I first started drafting this post, it’s been announced that due to a generous fundraising campaign to raise money to allow disabled Army veteran to respond to the erroneous takedown notices filed against his site, LendInk is coming back!

Moral of the story, if you’re going to handle takedown notices yourself rather than relying on your publisher or an anti-piracy service, be certain to do your due diligence to ascertain that what you’re complaining about actually is piracy. When filing a DMCA takedown notice, you’re required to state under penalty of perjury that your claim is valid. When in doubt, checking with the No Pirates blog is a good place to start.

_______________________

Amanda Brice is an intellectual property attorney for a large federal government agency by day. In her spare time, when she’s not wrangling an 8-month-old and a 2 1/2-year-old, she writes young adult romantic mysteries. Her latest release is Pointe of No Return. Learn more at www.amandabrice.net.

19 responses to “DMCA 101”

  1. Great post, Amanda. Although, I have to admit, much of it left my had spinning. This may seem like a stupid question, but what constitutes an ‘electronic signature’ and how does one generate a signature on digital correspondence?

    Just call me clueless.

    0

    • Amanda Brice says:

      You sign electronically with your name (or whatever else you want to consistently use as your signature) between slashes, like so:

      /Amanda Brice/

      This has been 100% legal (and anyone transacting business over the internet is required to accept it) since Clinton signed the E-SIGN Act into law in 2000.

      0

  2. Magdalen says:

    Thanks, Amanda, for helping us out with the ramifications of this business. I’m afraid the LendInk business was mishandled so very badly, in part because of the current “us vs. them” mentality of readers & authors, but also because so many people didn’t understand the DMCA and what it does, and doesn’t, do.

    I’m glad to hear that the LendInk site will reappear. Hopefully, everyone will have a better idea going forward how best to deal with legitimate sites like LendInk, and pirate sites.

    0

  3. Amanda, Thank you so much for addressing this issue and for informing us of the proper steps when dealing with pirate sites.

    You told me immediately, when I’d questioned you, that LendInk appeared to be a legit lending site, on the lines of Goodreads. I thought so since it provided buy liks to Amazon & B&N. Honestly, I didn’t realize there were other sharing sites. I’m glad I asked before picking up my pitchfork. Is there a listing of legit lending sites anywhere?

    0

    • Amanda Brice says:

      I’m not aware of a list of legit lending sites, but if a site is not actually offering the books directly through the site but is merely acting as a clearinghouse to match up folks to use the lending enabled feature on legitimately purchased ebooks, then you can assume that they’re legit.

      LendInk (and Lendle, and eBook Fling, and the lending threads on Goodreads or Kindleboards) are utilizing the authorized lending features of Kindle and Nook. No lends acutally happen on the site — they match up people who want a copy with people who have a copy, and the lends are transacted by those two parties through Kindle or Nook.

      I think a lot of the firestorm happened because many authors were unaware that their ebooks are lendable. Not all ebooks are lendable, of course, but by definition, if your books are uploaded through KDP (not KDP Select, which is a different program) under the 70% royalty option, then your books are lendable. Period. You don’t have a choice in the matter.

      If you don’t want your books to be lendable, then select the 35% royalty.

      It seems like many authors were unaware of this feature (which is in the Terms and Conditions), which is a reminder that we should always be familiar with what we are agreeing to.

      0

  4. Kat Cantrell says:

    Wow. I’m with Laurie. My head is spinning. I think this is a very good argument for hiring a lawyer when in doubt. 🙂 Thank you for the very thorough break down. I’d rather none of this be necessary though…sigh.

    0

  5. Amanda Brice says:

    One other thing I need to clear up.

    Many publishers ask that you forward instances of piracy to their attention so that they can handle it. From posts I see on various forums, I’ve begun to think that some self-published authors think that Amazon is their
    “publisher.”

    Not so. Amazon *is* a publisher, but through Montlake or 47North or Thomas & Mercer. KDP is merely a means to allow self-published authors to upload their material to Amazon, but KDP is not a publisher.

    Therefore, if you find a site listing your books and you wonder whether it is piracy, asking Amazon to handle the matter is not the way to go. KDP’s customer service staff are not attorneys. They’re customer service representatives and technical support people, so they’re not qualified to make a determination as to whether a particular website is engaged in piracy. And if it is in fact piracy, they cannot file a DMCA takedown notice for you. Only the copyright holder or her authorized representative (publisher, agent, anti-piracy service such as Muso) can do this, not one of your retailers. (Which is what Amazon is.)

    0

  6. What great information! And I had no idea about the electronic signature either. I used to try to keep up with all the pirate sites and send them to the legal department at SMP, but it just got to be too much. There are so so many. So, unless my publisher is really on this, the pirates are definitely winning. You get one taken down and twelve more pop up. It’s just crazy and frustrating!

    0

    • Tamara Hogan says:

      Whenever Google Alerts brings one of these to my attention, I forward it to the piracy team at Sourcebooks, but otherwise…I don’t have time to deal with it. I’d spend a significant portion of my limited writing time issuing take down notices. It’s really frustrating, though.

      Readers, IT IS NOT A COMPLIMENT WHEN YOU STEAL OUR WORK!

      0

      • Amanda Brice says:

        No, not a compliment at all. I think a lot of it has to do with the fact that lots of people think all authors are rich and that it’s victimless because it just takes money out of the pockets of a big corporation. They don’t realize that it’s actually hurting the author.

        0

    • Amanda Brice says:

      You’re absolutely right — because most of the pirate sites are operated overseas, they just keep cropping up as soon as you get one taken down. So it’s best to let your publisher handle it, or utilize a service such as Muso (I believe it’s $20 per month).

      Takedown letters are pretty easy to write, but time-consuming if you have to keep issuing them over and over again.

      Another alternative is to accept that you’re never going to get them all and do nothing. Or jsut tackle the big ones.

      0

  7. Kate Parker says:

    It’s amazing how much stolen material is out there and how many thieves there are. Thank you Amanda for this valuable information. I hope all the publishers are on top of this problem, because the more thievery there is, the more there will be in a never ending snowball rolling downhill. Can you tell I’m looking forward to cooler weather?

    0

  8. AJ Larrieu says:

    Wow, Amanda, thanks for this post. You broke it down really well. I’m definitely bookmarking this for future reference.

    0

  9. Gwyn says:

    I’m just wondering whatever happened to ethics? I know they ousted the Golden Rule when they ousted the Bible, which is a shame. Doing unto other BEFORE they do unto you just doesn’t have the same cache.

    Thanks for this, Amanda. Although it saddens me, it’s part of our reality. And in that reality, I’m thinking it may be time to rethink my goals. Sometimes I really hate people.

    0

Subscribe to the Blog

The Latest Comments

  • Vivi Andrews/Lizzie Shane: Happy Thanksgiving, Heather. 🙂 I have to ask – is that leaf thing a common...
  • McCall: Loving my Mermaid sisters and sharing in everyone’s success. Love the Ruby’s too. Hope everyone...
  • Tamara Hogan: Rebelles, how awesome to read your updates! As someone who just registered to judge the GH (again,...
  • C.R. Grissom: I offer my thanks and gratitude to The Rubies. This group embodies the spirit of the Golden Heart...
  • Addison Fox: Congratulations to all the Rebelles!! So glad you’ve joined us for this series and wishing you all...

Archives