First off, I want to reiterate that I’m not a lawyer nor do I offer legal advice. In fact, when posting this site, I’ve gone to great lengths to avoid anything that even resembles legal advice. All I can do legally is report the news and say what works for me, nothing else.
However, a lot of people have been asking me about how to write a DMCA notice and wanting advice on the proper format for such letter. While it’s a very difficult question for many different reasons that I’ll discuss later, it is a topic worth discussing as it is something that does come up quite frequently when dealing with plagiarism.
On that note though, if you simply want a quick fix and don’t want to get into the details of what makes up a notice, check out the Contacting The Host page of the Stopping Internet Plagiarism Section of the site. At the footer, there are several links to sample DMCA notices that allow you to just insert your information in predefined blanks. It’s by far the easiest way to get going.
However, if you’re wanting to write your own or are merely curious as to what makes up a good DMCA notice, then there’s a lot more to the story.
The problem with explaining what is or isn’t needed in a DMCA notice is that what one person calls a valid notice another might not. Every company, and sometimes every lawyer, has different requirements. Where LiveJournal, for example, asks for only a couple lines to be amended to an abuse complaint, Google requires the submitter to meet a very strict standard.
The DMCA itself only does a little bit to clear things up by saying:
“A copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider or designated agent.”
Section 512(c)(3), which is referred to in the DMCA, continues by providing a list of six different elements which each letter must contain to be legally valid. While that goes a long way to clarifying the elements required of such a notice, it can be difficult to figure out how to meet the requirements adequately in a short letter. However, once you pierce through the legalese, the requirements are actually very simple.
The Required Elements
According to Section 512(c)(3), the required elements of a DMCA notice are as follows:
(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.
This line really should be the last element on the list because it basically means you need to sign the letter. If you’re sending the letter via fax or regular mail, this means a traditional handwritten signature. If you are sending it via email, you can simply type “Signed: (Your Name)” and have it be just as valid. Courts have largely upheld that electronic signatures are just as valid as physical ones.
(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.
This requirement basically states that you have to identify the works claimed to be infringed. The easiest way to do that is to simply provide links to the originals. However, some also require that you provide the full titles along with the links. It’s usually easy enough to provide both, but generally, in my experience, only one or the other is necessary.
(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.
The easiest way to meet the requirements of this item is to provide links to the infringing material. It’s that simple. This section is asking you to provide the host with a means of adequately finding the works you are claiming to be infringing. While you can provide directions to finding the work, which you actually have to do when filing a notice with Google, links just make things so much easier for everyone involved, especially if you use Email.
(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.
This requirement asks you to provide full contact information for the host or whoever you’re filing notice with. This information should include your address, phone number and, if applicable, email address. However, it’s important to note that, though you are required to provide all of this information, odds are, a host will only contact you via email. I’ve never heard from one by phone or mail.
(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.
This line is actually intended to be taken quite literally. You need to make sure that your letter has a statement saying those exact things. The easiest way is to simply copy and paste the line, “I have a good faith belief that the use of the material that appears on the service is not authorized by the copyright owner, its agent, or by operation of law.” and be done with it.
(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 final element is also to be taken literally. A second statement needs to say exactly those things and the easiest way to so do so is include a line that says “The information in this notice is accurate, and I am either the copyright owner or I am authorized to act on behalf of the copyright owner.” It might seem broad and redundant considering that you are the copyright holder, however, this is a paper for lawyers, not English professors. It’s wise to give them the exact language they’re looking for, even if it doesn’t all apply to you.
Beyond the legal requirements, it’s important to try and string the thing together so it serves as a functional letter. Though the body of such a notice is usually a bulleted or numbered list with each requirement being a separate point, a brief introduction and an announcement that you intend to avail yourself of your rights under the DMCA is often appropriate.
Also, if you’re emailing your notice to the host, which is by far the most common way of submitting one, you need to make sure to pick a valid subject line such as “Notice of Infringement” or “DMCA Notice”. Not only does this help make certain that the email is opened and taken seriously, but it also prevents the letter from getting lost in spam filters. After all, most abuse and agent email address are public and receive a lot of junk mail, they most likely have very strong spam protection as well.
Lastly, don’t forget to say thank you. Yes, this is a legal document and the language should reflect that, however, you are still asking for help and a recipient of one of these complaints can almost always add a few hoops for you to jump through if they’re in a bad mood. Taking a line to say “Thank you for your cooperation” makes good sense and is just good manners.
When sending a DMCA notice, try to make sure that it meets all of the above requirements. However, bear in mind that the law has been interpreted many number of ways and some hosts might have specific requirements that aren’t necessarily in the law itself. If one of your letters is rejected and you aren’t certain why, write back and ask them what else they need from you. Usually, they will take the time out to let you know.
Finally, realize that, although most Web hosts and service providers do not like the DMCA, they do cooperate fully with it. Many very large companies might take a long time to get around to your notice and many small ones might not have a policy in place, but they almost all will respond, if for no other reason than the law requires them to.
So be patient and don’t lose your temper. Dealing with hosts can be frustrating, but it is more than manageable with a little time and understanding. If you put yourself in their shoes, I think you’ll see what I mean.[tags]Plagiarism, Copyright, DMCA, Copyright Law, Content Theft[/tags]