If you run a Web site, there is always a chance you could be the subject of a DMCA notice.
No matter how vigilant you are with copyright issues, there is always the chance that there could be a disagreement of fair use, a misunderstanding about a license issue or, in very rare cases, a malicious attempt to silence a critic.
However, responding to a DMCA notice is not an easy thing. Though filing a notice is notably complicated, answering one can be even worse.
Still, there is nothing in the process that can’t be done on your own unless complicated legal issues are involved. There’s no reason to panic if your site is the subject of a DMCA notice, but it is important to have a plan to deal with it efficiently and effectively.
The Dreaded Letter
It’s a letter that no one wants to get. You sit down to check your mail and there’s a message for you from your host, you open it up and it starts off something like this:
Dear Sir (or Madam);
Unfortunately, we have been forced to suspend your domain account for the following reason:
Please be advised that we received a complaint that you have posted copyright protected material on your website without the owner’s authorization.
For Webmasters, this is a moment of panic. Uptime is everything and when a Web site, or even part of one, is down, everything seems to come to a screeching halt.
Many, caught up in that panic, begin sending a flurry of emails in hopes of getting things back up. However, letters to abuse, tech support and other employees at the host are all either ignored or are answered with more form letters.
However, what’s needed isn’t a flurry of communication, but rather, a pinpoint attack to solve the problem and get back online as quickly as possible.
Seven Steps to Getting Back Online
Should you find yourself in the unfortunate position of being the subject of a DMCA notice. Follow these steps and you should be able to get your site back up in the shortest amount of time possible.
- Read the Letter Carefully: Read the letter, the whole letter, very carefully. Take special note of their process for providing counter-notice, their DMCA contact information and whether or not your entire site is down or they just removed the work itself. If the latter is the case, there is much less urgency, if the former is true, you need to act quickly.
- Read the DMCA Notice: If the host did not provide you with a copy of the notice, as they are required to do, request one by contacting their DMCA agent. The notice will include the information of the infringing party, the works they’re claiming to be infringing and information referencing the original works. From that, try to determine the nature of the claim, is it a license dispute, a fair use issue or is the notice completely wrong?
- Remove the Work: If the work can be trivially removed, for example just a file or a post, then do so. You can contest the notice later but the first priority is getting back on the Web. Since most hosts will give you FTP or panel access after you’ve been served with a notice, you should be able to log in and manually remove the disputed work. If you don’t have such access, request it from both the DMCA agent and the abuse team.
- Notify The Host: Once the work has been removed, contact both the abuse team and the DMCA agent informing them that the work in question has been removed from the site and that you would like access restored to the rest of your site. They will usually do so quickly. Do not email the tech support team regarding this as they usually do not have the needed authority.
- Determine the Validity of the Claim: With the site back online or at least on the way there, look at the validity of the claim. Is there an honest dispute? A fair use question? A derivative works issue? A licensing issue? Or is it just completely wrong, say for something you created or a use that was clearly not infringing? This might be an area you want to contact an attorney, in particular one familiar with copyright law, as the legal questions can get confusing.
- Contact the Complaining Party: The DMCA notice should contain the contact information for the complaining party. If there seems to be a misunderstanding, contact them directly. DMCA notices can be retracted and often are. It may be possible to work out an agreement or explain the situation. It could have also been a simple mistake. However, if the complaining party is obviously lying or misapplying copyright law, this will probably do no good. However, if mediation does work, it’s likely the fastest way to get works put back on the Web.
- File a Counter-Notice: If the DMCA notice is clearly invalid and contacting the complaining party is fruitless, file a counter-notice with your host (sample letter here). You can find a template for doing so here and it should result in the work being restored within 10-14 days. Bear in mind that, the same as with a DMCA notice, there are legal implications to filing a false counter-notice and that, depending on who the complaining party is, it could result in a lawsuit.
As you can see, the initial goal is not a matter of being right or wrong, but on getting back on line and then sorting things out. You can generally get your site back within a few hours, but the copyright issues can take days to sort out. It is not acceptable to be down for that long.
There are several notes worth paying attention to in regards to getting back online after a DMCA notice.
- Liability: Hosts follow the DMCA so that they can not be held liable for the alleged infringement. Filing a counter-notice relieves them of that potential liability and places it squarely on your shoulders. Take care when doing that.
- Better Safe than Sorry: If there is any reasonable cause to believe that the use was infringing, it’s probably best to keep the material off of the site or complying with whatever licensing terms are requested. The benefit of having some potentially infringing material is almost always severely outweighed by the potential consequences.
- Consider Switching: If you own your own domain and can control your DNS servers, you should be able to secure and switch to a new host within 24-48 hours. A cheap, short-term contract would be ideal, especially if you plan on moving back. This can be a great way to get back online fast if the DMCA notice is invalid. In this regard, it pays to keep regular back ups in case your FTP and panel access are also disabled.
- No Two Are Alike: No two hosts are the same. Some will surgically remove infringing material, others use the nuclear option. Good ones will ignore obviously false DMCA notices, others will follow it religiously. The steps above are just a guideline and may or may not apply to your case.
- Be Professional: Whatever you do, don’t kick and scream like an angry child. You want and need to forge a good relationship with your host. Being professional and respectful is the best way to do that. Remember, they didn’t want to have to do this either.
- Chilling Effects: Also, when you get a copy of your DMCA notice, consider filing it with Chilling Effects. The site keeps a record of DMCA notices as well as other cease and desist letters for research and commentary.
- Higher Powers: Finally, if you find yourself being harassed by obviously false DMCA notices, consider contacting the EFF for assistance. You can also contact your own attorney. There may be actions that they can take to stop the harassment.
It’s a lot to remember and keep in mind, but it all is important as responding to a DMCA notice is at least as tricky and, potentially, dangerous as filing one in the first place. You have to be smart, deliberate and direct to get results and avoid any further trouble.
Certainly being the subject of a DMCA is never a pleasant thing and it’s going to cause some problems. The amount of trouble will vary depending on your host and the nature of the claim, but it is usually safe to expect some issues unless the notice is laughable in nature and the host sees it as such.
You can minimize the damage though by being prepared. Most sites that are subjected to DMCA notices either don’t go down at all (some hosts do give the owner the opportunity to remove the work) or only a short while.
There are exceptions to the rule, but those seem to involve bad hosts that have poor DMCA policies. The law does not require that sites be shut down permanently or that the disputed work needs to removed for all eternity. In fact, the law has protections built into it to prevent that.
You need to be careful when you are answering a DMCA notice, especially one that might have some validity. However, there’s no reason to let a DMCA notice be the end of your site, not if your host is following the law as it is written.
Update: I just ran across a great Counter-Notice Generator on the Chilling Effects Web site. Very useful if needed.