Federal Internet Law & Policy
An Educational Project

DMCA: Notice and Take Down

Dont be a FOOL; The Law is Not DIY

Step One

Where a copyright holder identifies possibly infringing content, the copyright holder can give notice to the service provider. For the notice to be valid, the apparent copyright holder must [17 U.S.C. § 512(c)(3)]

The majority of notices appear to be filed by a few enforcement rights companies. Reports indicate that copyright owners and their agents have automated the process of identifying unauthorized copies of their works, and send out computer generated notices that have not been reviewed by any human or attorney. [Katyal p 345] [EFF] [Brennan p 14] Compare [Bainwol]

Defective Notice: Some courts have indicated that without proper compliance with the DMCA, the notice is ineffective. Hendrickson v. eBay Inc., Case No. CV 01-0495 RJK (CD Cal. 2001): copyright owner's notice to Ebay was deficient where it failed to have a proper signature, failed to provide specific page where violation occurred, and failed to include good faith statement and statement that notice is accurate under penalty of perjury. The access provider is not required to sort through all content based on non-specific allegations.

Other courts have held that substantial compliance with the notice requirement effectively puts the service provider on notice of the infringing activity; thus the service provider even with defective but substantially complying notice must act against the infringing content. ALS Scan Inc. v. Remarq Communities Inc., 239 F.3d 619 (4th Cir. 2001): Plaintiff's defective notice made defendant aware that third party's use of system was infringing, thereby eliminating service providers immunity unless it acted.

Step Two

Having properly received a valid notice, the provider must expeditiously [RIAA v. Verizon] take down (remove or disable access to) the content in question, and promptly provides notice to the poster of the content.

Step Three

The content poster can respond with a counter notice stating that the content in question is not infringing (aka "Put Back Requirements"). [17 U.S.C. § 512(g)] The content poster must

Step Four

The ISP receives a proper and valid counter-notice and must

Wrongful Notice

If someone sends a notice to the provider, knowing that the notice is a material misrepresentation, resulting in the wrongful removed of content (or if the poster sends a wrongful counter notice), the injured party has certain rights (recovery from the ISP is not one of them).

The wrongful actor may be liable to the injured party (including the provider) for resulting damage including costs and attorney’s fees. [17 U.S.C. § 512(f)] Note that individuals seeking damages under this section will have two challenges:

The overuse of takedown notices has received significant criticism.[DMCA Problems] [EFF] [Urban] [Brennan] [Chilling Effects] [Sohn]

Fair Use

Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008): Copyright owners must evaluate whether alleged infringers have made fair use of their material before sending a take down notice.