Previously, sending a DMCA notice from Gmail involved using a template stored on your computer and either pasting it manually or using a text expansion program such as Signature, Typinator or others.

With the new Canned Responses feature, the DMCA notice, as well as your cease and desist letter, can be stored within Gmail, making it easy to file a notice from any computer that you have access to.

How you do that is surprisingly simple, all you need is access to a GMail account (Not a Google Apps one sadly) and a good stock letter.

Step 1: Turn on the Canned Responses Feature

Log into your Gmail and click on the green icon at the top to access Gmail Labs.

Then scroll down and turn on Canned Responses

Once you’ve clicked enable, scroll down and click “Save” to make it available it in your account.

Step 2: Paste Your Text into a New Email

Open up a new email and copy your stock letter to the clipboard. Then, paste the letter into your new email, being careful to overwrite your signature if you do not want it to appear when you send out a DMCA notice.

Also, be certain to add the subject line you want to use, something akin to “Notice of Copyright Infringement” works best.

Step 3: Save as a New Canned Response

Save the notice as a new canned response, it will automatically insert the subject as the title but you can change that at the next pop up.

Once you’ve done that, your canned response is ready to use.

Step 4: Paste Into New Email

Open up a new email in Gmail and click the canned response link.

If everything went as planned, the canned response should overwrite your entire email, including your signature line, leaving you with a completely clean template that you can add the relevant information into.

Some Caveats

Right now, much to my chagrin, Gmail Labs is not available for Google Apps accounts. It is only for basic Gmail accounts.

Second, be EXTREMELY careful when using this feature as it is very easy to accidentally hit “Save” and not “Open” when trying to drop in a canned response, thus overwriting your existing template. Both “Open” and “Save” use very similar pop up warnings, making it very easy to click past them without reading.

Finally, double check your subject and formatting after dropping in the canned response. Though sometimes it seems to add the correct subject, other times it does not. It is clear that this feature is not working 100% just yet.

Conclusions

All in all, I this new feature has a great deal of usability and, though I’ve focused here on sending a DMCA notice, it works just as well for any stock letter or template.

This is a feature that I’ve been waiting for for a very long time in Gmail and the fact that it is not available for Google Apps has me a bit miffed right now. However, I can use my regular Google account to send any notices that I have to.

Perhaps the greatest beauty of Gmail is its flexibility, allowing me to send mail from my address using several different Gmail accounts.

The article, slated to be published in the Winter 2008 edition State Bar of Michigan Litigation Section Newsletter, goes into great detail about the risks users of the DMCA face and outlines three cases where questionable DMCA notices came under fire in court.

Though the article doesn’t set any hard guidelines for filers of DMCA notices, other than encouraging rights holders to “proceed carefully with the advice of counsel to avoid injuring themselves” it is a must-read for anyone who files notices regularly or is interested in protecting their rights on the Web.

Two Traps

The article cites two common ways in which rightsholders, acting without the assistance of an attorney, can become “trapped by the DMCA.

1. Inappropriate form letters and/or inappropriate legal claims
2. Reliance on service provider’s individual procedures, which can unwittingly encourage fraudulent claims

The first trap contains elements discussed heavily on this site. It is important to make sure that you have a good stock letter, ideally one from your attorney, and that you only use the DMCA for cases which are clearly an infringement. Cases that involve questions of fair use, licensing disputes or other areas of law should always be handled by an lawyer.

It is your responsibility to understand the law before proceeding and if you have any questions, either lookup the information from a reliable source or contact an attorney.

The second aspect is one that I had not pondered. Previously I had commended sites such as LiveJournal and YouTube that have provided easy, non-traditional means, for every day users to file DMCA notices/

According to Shepherd, these systems can unwittingly push users into filing false notices by causing them to make false claims.

Shepherd specifically looks at Ebay’s well-known VeRO program, which allows rights holders to easily remove auctions they deem to be infringing. However, the system has been abused in the past by rightsholders seeking to stop sales that are, in truth, perfectly legal.

At least one of those cases, involving MGA Entertainment, the makers of BRATZ dolls, wound up in court.

Clearly, one should not simply follow the procedure of a host blindly and, instead, should do their own research or, even better, contact their attorney.

Case Law

The article also delves a great deal into case law surrounding questionable DMCA notices, in particular section 512(f), which allows subjects of false DMCA notices to obtain damages from the person who ordered the takedown of the work.

Shepherd’s focus was on what constitutes “good faith” when filing a notices. At issue is whether that good faith is objective, meaning that it is solely a matter of whether or not the use was infringing, or subjective, meaning that the person filing the notice truly believed that it was.

This is an area of the law that is still being settled and Shepherd goes into much more detail than we can here. However, as she puts it, there are ten cases currently in progress over this exact issue so expect updates about this in the near future.

Caveats

If I were going to criticize the article in any way, it would be that it overplays the amount of false notices and the abuse of the DMCA. In one part, Shepherd says the following:

There is no doubt that the Section 512 takedown procedure has been widely used in inappropriate ways. Both individuals and large corporations routinely use the procedure aggressively, sending cease-and-desist letters to censor opinion, to suppress the online publication of unflattering or damaging content, to attack enemies and competitors, and to enforce non-copyright intellectual property claims.

Though there is little doubt that such misuse of the DMCA does in fact take place, it is not nearly as widespread as some believe. Though cases of DMCA abuse routinely grab headlines, they are relatively few in numbers. Even the study Shepherd cites, has several flaws including sampling issues and unclear distinctions between types of misuse.

In my conversations with DMCA agents and OSPs, I understand that actual DMCA abuse is relatively rare and most DMCA notices that are false are questionable due to technicalities, not legal issues.

For the most part, only a handful of individuals and organizations file knowingly questionable DMCA notices and those that do so usually do so repeatedly and aggressively until stopped.

Though I agree that abuses do take place, I disagree that they are as common as implied nor do I believe it is fair to punish the law for a handful of people who wish to abuse it.

Still, there is little doubt that Shepherd’s look at the law is well-deserved and very accurate.

Conclusions

All in all, the article itself is a must-read for anyone who is filing DMCA notices or considering it. It is important to take seriously what Shepherd has to say about the law and listen to her commentary. They are important words of caution.

I encourage everyone to download the PDF from her site and read through it as it goes into much more detail than I can here and raises other issues that aren’t covered in this article.

So, if you get some time, download the PDF of the preview and give it a read through. You’ll be glad you did.

Credits: Danger Symbol image From Danzo08 at SXC. Licensed under SXC’s standard restrictions.

So how do you keep the workflow moving and make the process of preparing and sending the letter as painless as possible? The answer is easy, templating.

Not only is it important for sending a DMCA notice or a cease and desist, but it is also useful for any other form of correspondence you send out semi-regularly.

Fortunately, no matter what you use to check and send email, there is probably a system available, for free or very low cost, that lets you easily template and fill out form letters, all without leaving your favorite mail client.

Web-Based Services

Since most email users currently use some form of Webmail service as their primary email service, the Web browser becomes not just a tool for viewing Web pages, but also the most important email client.

Fortunately, nearly every single browser either has a feature or an add on that that can function as an email template system.

Firefox, for example, has the Signature Extension. Signature allows you to paste any block of text into any form field with a right click of the mouse. It was designed for adding signature lines to emails and forum posts but can work with text of any length, making it perfect for pasting in any form correspondence.

Internet Explorer users have to look a little harder, but they have several systems available to them, each of which integrate with Windows. They include Autotext and Textomatic. Though neither solution is free, both are reasonably priced and offer trial periods.

Opera users have the ability to insert blocks of text built into their browser through the “Notes” feature. All one has to do is set up their templates in the Notes panel and then right click on any Web form to insert their text.

Other browsers have similar tools available, though many of them will integrate with the operating system, not the browser, meaning that they are also available to be used with any other email client that is on the system.

Mozilla Thunderbird

Though Thunderbird users have access to their own version of Signature, it isn’t available for the latest versions of the program. Fortunately, QuickText expands upon the functionality of Signature and Thunderbird’s built-in features.

Likewise, the Stationery add-on is an option, however, its HTML formatting tools might be overkill for someone just wanting to send out plan text form letters.

All in all, Thunderbird users have several good options for sending out form letters from their email client.

Apple Mail

My mail application of choice, Apple Mail, offers one of the best mail templating systems available, MailTemplate. MailTemplate not only allows you to create templates for easy insertion, but offers a wide range of variables that can be automatically filled in by the program.

The only downside to MailTemplate is that a full version of it costs $15. However, if it is a program that you are likely to use regularly, it is well worth the price.

If you are using Leopard, you are even in better luck as the latest version of Apple Mail includes a full mail templating system, that you can use to customize your messages.

Outlook

Outlook already has a decent template system built in. You can even download additional templates from Microsoft’s site.

However, if you require more power, Bells and Whistles for Outlook provides more advanced template management complete with autofilled variables.

Overall, those who use Outlook to handle their email are pretty well covered when it comes to templating.

Other Programs and General Tips

Other email applications, obviously, will have different needs and requirements than those listed above. Many will likely have some form of templating built into the program while others will need to use an add on.

However, to simplify the process, the add ons will likely integrate not with the application directly, but the operating system. Windows users may want to look at the add ons listed with Internet Explorer as most of them can be used with any application and Mac users will likely want to look at Typinator.

If your email program doesn’t offer the feature as a built-in option or have a free add on available, you might want to consider working around the problem by saving a copy of the letter to your drafts folder and then copying it as needed. Though not an elegant solution, it is an excellent workaround for those who want to have a notices on hand but don’t use stock letters often enough to warrant a paid application.

Conclusions

As with most things in life, being prepared is half of the battle when dealing with content theft and plagiarism. One of the ways you can be better prepared is to have your letters at the ready and available to send out whenever necessary. This not only speeds up the process of dealing with such matters, but lets you get back to the things you enjoy even sooner.

The good news is that being ready takes very little time and, depending on the approach you take, is completely free or very inexpensive. Best of all, you can easily expand the techniques you use to quickly prepare emails regarding content theft to other areas of your inbox and save time on all of your mail duties.

In short, this is one of the few areas where improving your content theft strategy can help you in other aspects of your life. Though I don’t use form letters on email regarding this site (there are no “typical” questions asked), elsewhere, the amount of email and replies would have buried me without the use of good templates.

If your time for email is short and you find that you are repeating yourself a great deal, either with DMCA notices or just thank you letters, this is something to look into.

So Jeremy, congratulations. You earned it by figuring out a very tough puzzle.

However, the puzzle was designed to make a point about the complexity of submitting and determining the validity of a DMCA notice. I think it achieved that.

That, of course, brings me to the solution. The third notice was the valid one, if you want to know why, keep reading below.

Missing Something

All three notices were missing something, the trick was to figure out which missing item was not actually required by the law.

The first notice was missing a statement, under the penalty of perjury, that the notice was accurate. Several who played the game caught that and were completely right. The notice is completely invalid.

The second notice is a bit more tricky and was the one that tripped everyone up. However, it’s missing feature was actually related to the first one. To figure out what is wrong, we’ll look at the sixth requirement under the DMCA:

(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.

The notice has to be filed by either the copyright holder or an authorized agent. Though the second one states that they do not believe the use is authorized by either, it does not state that the notice is submitted by one or the other.

That is a major distinction from EU notice and takedown and is a legal requirement of the DMCA. The second letter, theoretically, could have been submitted by anyone without authorization from the copyright holder. That would be against the DMCA and would haev been grounds for rejecting the notice.

It is a tricky law in that regard, but it is an important element.

Finally, the third DMCA notice was missing the URLs from the original site. However, as Jeremy pointed out, there is no requirement for URLs to be there. All that is required is that the original work be identified, which it was by the title, and that the infringing material be identified as well, which it was via URLs.

You can see examples of this in the DMCA notices filed by companies such as Viacom and Scholastic, which rarely have URLs to original works since their material was never supposed to be online.

The third one, despite being shorter and containing less information, was actually valid.

Thank You

I want to say thank you to everyone who participated and hope that you will take part in the next game, whenever that is. There were a lot of great ideas kicked around and a couple of you emailed me for hints, which is definitely cheating, but was a lot of run.

Let me know what you thought of the game and I’ll try to make the next one a little bit less evil.

Quizzes always bring out my sinister side.

Though the criticism of hosts is a little more fair since they were one of the parties pushing for the notice and takedown provision, the fact remains that the DMCA notice and takedown provision is complicated and, for most people, difficult to use.

Without a good stock letter, most people find it nearly impossible to file a complete DMCA notice and most hosts provide little to no assistance with the process.

To illustrate that problem some as well as explain why hosts make mistakes with the DMCA and why so many submitted notices turn out to be invalid, I’ve decided to create a game. This game will test your knowledge of the DMCA by giving you three notices, only one of which is valid.

You have to pick the right one.

The rules and notices are below the fold so keep reading and post your answers in the comments.

The Rules

The rules are simple, there are three notices below in RTF format. They have different structures and styles but only one of them is complete. To win, all you have to do is post the correct answer in the comments and then explain, briefly, why the other two are invalid.

If you can do that first, then you win no prize at all other than my recognition and, if you wish, your link at the top of this article.

However, there are a few rules before we begin:

1. No Cheating: Keep your eyes on your own paper. Ideally, you should be able to do this from memory. However, if you need help, all you need should be on Plagiarism Today. No searching other sites for the answer. We are all on the honor system here.
2. No Lawyers: This is for laypeople. Sorry. That kind of advance knowledge is just cheating for this quiz.
3. No Spam Sites: I reserve the right to not link to any site that may be spammy or inappropriate. Keep the sites clean, spam-free and appropriate for Plagiarism Today.
4. I Didn’t Cheat Either: Both of the invalid notices have material problems with them. Since they all report the same “infringement” there are no fair use or other legal questions. There are also no issues of semantics. This should be cut and dry and the reasons are based upon the law itself, not what an individual host *might* accept. (Hint: I don’t cheat, but I do use red herrings.)
5. Have Fun: Though not a rule, it is still important. This is a game so have fun with it, just remember it highlights an important point.

If no one guesses the answer correctly in 24 hours, I’ll post it tomorrow as part of my regular update. If this goes well, I might do similar contests on a regular basis.

Please let me know what you think.

The Notices

If you are ready to play, here are the three notices in RTF format:

DMCA Notice #1

DMCA Notice #2

DMCA Notice #3

Open up each file, take a look at them, pick out the one that is correct and explain why the other two are not.

Once again, the first person to do will be given a link at the top of this article and the eternal praise of all who read this.

Have fun and put yourself in the host’s shoes when looking at these notices. This is what they deal with every day.

Conclusions

Web hosts asked for the DMCA and were some of the biggest beneficiaries of the notice and takedown provision. It removed copyright liability from them and gave them a legal system to remove works that were infringing while removing them from the requirement to search for potential copyright violations.

Regardless, the DMCA is a difficult law to use and it is the responsibility of the host to make sure the notices they receive are valid. However, this is designed as a minor illustration to show what they are up against when reviewing such notices and what submitters are up against when trying to create one.

What is needed is a unified, binding DMCA notice that is easy to use and easy to check. This could weed out many of the errors that come with trying to use/enforce the DMCA and, when combined with hosts who are more savvy about copyright law, could prevent many of the DMCA abuses.

In the meantime though, it is problems like these that we are stuck with and left to figure out.

Good luck to everyone.

(Note: If I made a mistake, I apologize. WordPress was being difficult with uploading and it is hard to work on three separate files like that at once. I checked them before and after I uploaded so there shouldn’t be a problem, but this post turned out to be far more difficult than I thought it would be. Please accept my apologies in advance if there are any errors.)

If you’ve been waiting for such a feature, then today is your lucky day.

Though I’ve posted sample letters as part of I’ve now added it as a permanent part of the site in the “Navigation” section to the right.

The current page includes three stock letters, a cease and desist letter, a DMCA notice for hosts and a DMCA notice for search engines. All three notices are available in full text on the page itself or as downloadable RTF files.

As with everyone else on the site, these notices are licensed under a Creative Commons license, however, when sending them to plagiarists, hosts or search engines, no attribution is required. Still, please respect that license when posting them on other sites.

If you have any questions or comments about these letters, feel free to email me your thoughts. I look forward to hearing what you have to say!